Ml M CJnrn^U Hatu Btl^aal ICibraty '^^is^^sssssfsstBiassse Cornell University Library KF 8935.Z9H89 Hughes' pocket digest of evidence. 3 1924 020 135 707 Cornell University Jbrary The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020135707 HUGHES' POCKET DIGEST EVIDENCE Bh THOMAS WELBURN HUGHES, LL. D. Dean Washburn College Law School Member of the law &cul^ of the University of Michigan for six years . Member of the law &cult!i of the Univeraily of Illinois twelve gears. Member of the law &cultg of Louiaiana State Universitgi two years. Dean of the College of Law of the Universilg of Horida three years Author of Hughes on Evidence, Hughes on Criminal Law and Criminal Pleading and Procedure, etc. PRICE: CLOTH $3.75, LEATHER f4.7S Topeka, I^msas F. M. Steves 6C Sons, Printers 6C Binders Copyright 1917 .... '. by THOS. W. HUGHES, LL. D. Author and Publisher. ERRATA ld*8iN^^ 4^'ina Second word in see. ldTJn^pa,gi'l^\'inadmissible," should be adnnissible. Last word in last line of text on page 116, "inadmissible," should be admissible. Seventh word in first line on page 469, "vendor," should be vendee. Fourth word in fifth line of text from bottom on page 513, "competent," should be incompetent. 7ji<«.rr: :^ft^^^ In Loving Memory This Book Is AfFectionately Inscribed To My Sainted WiiS ' Jennie Hughes COMMENTS ON ^Hughes On Evidence^^ FOR STUDENTS. PublisKed by Callaghan 8C Company "I used this text in the class, room last year and continue its use this year. I think it is the best work on this topic for class instruction, in print. It brings the rules of evidence out with great clearness and precision." J. W. GREEN, Dean University of Kansas Law School. "I know of no clearer definitions anywhere in any work on evidence, than those of Mr. Hughes. Clear definitions always mean clear thinking, and his work as a, whole is clear, concise and correct. I know of no work on evidence that puts more that is modern and practical into the same number of pages." ADBLBBRT MOOT, Buffalo, N. T. "Hughes of the University of Illinois has written an ex- tremely good book for students and I advise all of you to study it." (To his class in evidence.) JOHN C. GRAY, Harvard Law School. "The author has taught the subject of evidence for fourteen years, six in the University of Michigan and eight in the Uni- versity of Illinois, and comes well equipped to discuss questions- in this branch of jurisprudence. It cannot be questioned that this work possesses a high degree of excellence and merits the strongest commendation." (1916.) AMERICAN LAWYER. PREFACE The aim of the author in writing this volume has been to produce a practical book for the use of trial lawyers And judges. An attempt has been made to state clearly and succinctly the rules of evidence and their exceptions, as laid down by the courts of last resort. Theorizing and philosophizing have been studiously avoided. Thruout the book numerous apt illustrations are given, and, very generally, pro- positions are supported by apt citations. The arrangement of the various divisions and subdivisions of the book is practically similar to th'at of "Thayer''s Cases On Evidence" and "Hughes On Evidence." There are five Parts. Part I deals with certain preliminary topics not peculiar to the law of Evidence. Part II deals with the leading principles and rules of exclusion. This Part comprises a large field of the law of Evidence. Part III treats of Real Evidenc'e. Paft IV of Documentary Evidende and Part V of Witnesses. This arrangement is a logical one and it has received much favorable comment. Each of the five Parts is subdivided into topics, each with its appropriate heaiding, and under each heading the various propositions of law pertaining to' the particular topic are succinctly stated and dis- cussed. The author of this volume has taught the subject of Evidence for twenty-five, years. He also has written a text-book on the subjfect for the use of students, which is used in sorhe twenty law schdols. In his large experience in teaching law he has taug^it practically . all the subjects of the law curriculutn, and he contemplates writing a series of pocket di- gests of various law subjects. At present he is en- gaged in writing "Hughes' Pocket Digest of the ■Law of Contracts." The plan of the book will be similar to that of "Hughes' Pocket Digest of Evi- dence." It will be a practical book for the use of lawyers and judges. It is the expectation of the author that it will be published about next March. O'^^.-yr: Wt-^^^ CONTENTS PART I. Preliminary Topics. CHAPTER I. Judicial Notice. Sec. 1. In general. 2. Public laws. 3. Meaning o( public laws. 4. Matters o( public interest. 5. Territorial divisions. 6. National and state officials. 7. Official seals and signatures. 8. Customs and usages. 9. Matters of history. 10. Meanings of words, phrases and abbreviations. 11. Facts which invariable occur. , 12. Matters peculiarly within the knowledge of the particular court. 13. Matters of universal notoriety. 14. Principles of science and art. 15. Jurors. CHAPTER II. Presumptions. 1. Definition. , 2. Classification. 3. Attributes. 4. Incapacity -of infants. 5. Legitimacy. 61 l^ecessaries. 7. Innocence. 8. Knowledge. 9. Custom. 10. Marital relation. 11. Absent and' unheard of. 12. Coercion. 13. Malice. 14. Intent. 15. Adverse user. 16. Peaceful possession. 17. Wife's authority. 18. Continued exislience. 19. Contributory negligence. 20. Time of payment. Xll THE LAW OF EVIDENCE Sec. 21. Order of payment. 22. Receipt of letters and telegrams. 23! Aiithority of agents. 24. Identity of persons. 25. Parental control. 26. Suppressing testimony. 27. Destroying a document. 28." Attempted flight. 29. Resulting trust. 30. Character of homicide. 31. Attempt to bribe. 32. Destroys ship's papers. 33. Sanity. 34. Survivorship. 35. Conflicting presumptions. CHAPTER III. Burden of Proof. 1. Definition. 2. Shifting! of the burden of proof. 3. Upon whom it rests. 4. Form and nature of the pleadings. 5. Rule when particular facts are peculiarly within the knowl- edge of a party. 6. Effect of presumptions. 7. Burden of proof in criminal cases. 8. Insanity a defense to a criminal charge. 9. Insanity in civil cases. 10. Negligence in general. 11. Negligence of common carriers. 12. Negligence of bailees. 13. Negligence of innkeepers. 14. Payment of promissory note. 15. "Want of consideration pleaded. 16. Statute of limitations pleaded. 17. Fraud alleged. 18. Rule in quo warranto proceedings. 19. Exemption from operation of statute.' 20. Modifications by statute. 21. The right to open and close. CHAPTER IV. Admissions. 1. Definition. 2. Classification. CONTENTS XlU Sec. I 3. When admissions are binding. i 4. Must be self-deserving. 5. Admission by an assignor. 6. Admission by prior owner of real estate. 7. Admission by prior owner of chattels. 8. Admission by prior owner of choses in action. 9. Admission by an agent. 10. Admission by a partner. 11. .^dmission by a Joint ownef. 12. Admission by a tenant in common. 13. Admission by a landlord. 14. Admission by an ancestor. 15. Admission by a testator and an intestate. 16. Admission by a trustee and a cestui que trust 17. Admission by a tenant for life. 18. Same. Owner in fee. 19. Admissions by the principal debtor. 20. Admissions by a joint tort feasor. 21. Admissions by a husband or wife. 22. Admissions by an attorney. 23. Statements made in a party's presence. 24. Statements made in party's presence in judicial proceedings. 25. Statements made in the pulpit. 26. Statements in letters received and not answered. 27. Admissions in pleadings. 2S. Effect of demurrers and pleas. 29. Rule against hearsay not applicable to admissions. 30. Parole evidence rule not applicable to admissions. 31. Taking precautions to prevent future injury. 32. Attempting to evade arrest. 33. Suppressing and fabricating evidence. 34. Failure to act. 35. Admissions rebuttable. 36. "When admissions are not binding. CHAPTER V. Law and Fact. Court and Jury. 1. Classification of issues. 2. Functions of court and jury. 3. Exceptions to the general rule. 4. Confessions and dying declarations. 5. Construction and legal eftect^of a document. 6. Execution, existence, contents and meaning of a document. 7. Legal effect of an oral agreement. 8. Negligence the issue. 9. Reasonableness the issue. Xrv THE LAW Of EVIDENCE Sec. 10. Whether certain goods are necessaries. 11. Whether certain real estate constitutes a homestead.- 12. Criminal intent the issue. 13. Miscellaneous examples of mixed issues. 14. Function of court to withdraw the case from the jury. 15. How question of withdrawal is raised. CHAPTER VI. Demurrers to Evidence. 1. Definition. 2. Joinder. 3. Effect of a demurrer to evidence. 4. Other analogous proceedings. PART II. Leading Principles and Rules of Exclusion. CHAPTER I. Relevancy of Testimony. 1. Relevancy. Definition. Application. 2. Facts legally relevant. 3. Similar transactions with other parties. ' 4. Similar acts injurious to other?. 5. Remedying defects after injury. 6. Others injured by same cause. 7. Proof of other crimes. 8. Sales of similar land in vicinity. 9. Other acts or occurrences which refute the inference or con- tention of accident. 10. Methods and appliance^ used by others. 11. Preparation, motive, threatts, etc. 12. Relevancy of demeanor. 13. Accompanying statements. 14. Financial standing of parties. 15. Similar accidents under similar conditions. 16. Testitnony that many others escaped injury. 17. Custom and usages of others. 18. Habits of animals. 19. Habitual negligence. 20. Company discharges servant. 21. Owner's knowledge of animal's vicious propensities. 22. Good faith of defendant. CONTENTS XV CHAPTER II. Character. Sec. 1. Definition, 2. Character versus reputation. 3. General rule in civil cases. 4. Reason for the rule. 5. Limitation of the rule. 6. Illustrations of the exceptions to the general rule. 7. Action for criminal conversation. S. In mitigation of damages. 9. Bastardy cases. 10. Actions for- malicious prosecution. 11. Testimony of financial and social standing. 12. Defendant's financial and social standing. 13. Plaintiff's financial and social standing. , 14. Character of defendant m a criminal case. ' 15. Same. Flight from state. In trouble before. 16". When testimony as to violent character of deceased inad- missible. 17. Testimony of good character of defendant. 18. General character for chastity where woman is on trial for murder. 19. The limitation of character evidence. 20. Chastity of prosecutrix in criminal action for seduction. 21. Mode of proving character. 22. Mode of eliciting the personal opinion of an Impeaching wit- ness. 23. Scope of character testimony. 24. Trait of being a peaceable and law abiding citizen. 25. Trait of being a violent person. 26. Trait of chastity. 27. Trait of honesty. 28. Trait of kindliness. 29. Trait of veracity. , 30. Trait of exerci^ng due care. 31. Relevancy of negative facts to prove good character. 32. Relevancy of particular facts. 33. Character testimony in actions of fraud. 34. Weight of character testimony. CHAPTER III. Confessions. 1. Definition. 2. Classification. 3. Authority for admissibility. XVI ^ THE LAW OF EVIDENCE Sec. 4. Voluntary confessions. 5. A person in authority. 6. Application of promise or threat. 7. Artifice or deception used. S. Promise of pardon, etc. 9. Advised to confess, tell the truth, etc. 10. Accused assured that his statement will be used. 11. Moral or religious exhortations. 12. Confessions under oath. 13. Accused under arrest. 14. Improper inducement terminated after' confession. 15. Conduct of accused induced by promise or threat. ,16. Criminating statements of facts. 17. Facts discovered as a result of an involuntary confession. 18. Whole confession introduced. 19. Substance admissible. 20. Other parties implicated. 21. Accused intoxicated. 22. Accused asleep. 23. Only external influence considered. 24. Confessions of other crimes. 25. Confession may be oral or in writing. 26. Promise by private detective. 27. Promise communicated to accused indirectly. 28. Witness speaks a difEerent language. 29. Accused compelled to do incriminating acts. 30. Presuniption and burden of proof. ' 31. Confessions admissible only against parties who make them. 32. Confession by third party. 33. Functions of court and jury. 34. Weight accorded confessions. CHAPTER IV. 1 Hearsay Testimony. 1. Definition. I 2. Application of the rule against hearsay. 3. Reason for excluding hearsay testimony. 4. Apparent exceptions to the rule against hearsay. 5. The making of the statement a material fact. ,6. Market values. 7. General reputation. CHAPTER V. Real Exceptions to the Rule Against Hearsay. 1. Origin of hearsay rule. 2. Importance of this field. .^ CONTENTS XVll CHAPTER VI. Statements Made Under Oath In Prior Proceedings. Sec. ' 1. Statements under oath. 2. Testimony given at former trials. , 3. Mode of proving testimony given at former trial. 4. Depositions. 5. Extension of the rule. CHAPTER VII. Dying Declarations. ^ 1. In general. 2. Scope of their admissibility. 3. Grounds of admissibility. 4. Statement by Lord Chief Baron Byre. 5. Illogical application by court. , 6. Eetjuisites of admissibility. 7. Proof of , consciousness of impending death. 8. Two homicides from same act. 9. Vague declarations. ^ 10. Declarations of opinion. 11. Interval between declaration and death. 12. Form of the declaration. 13. Impeachment of dying declarations. 14. Burden of prqot. 15. iPunction of court and Jury. 16. Weight of dying declarations, 17. This class of testimony not iltfconstitutional. 18. Proof of identity of accused. 19. Substance of declaration suf^cient. 20. Declaration must relate to declarant's homicide. 21. Competency of declarant. CHAPTER VIll. Declarations Relating to Pedigree. 1. In general. 2. Basis of admissibility. 3. Form of the declaration. 4. (Essential conditions. 5. Essential qualification of the declarant. 6. Remoteness of the rela;tionship. 7. Two branches of the same family. 8. T'roof of illegitimacy. 9. Declarant deceased. 10.^ Declarations made ante litem motam. 11. Declaration based upon hearsay. XVIll, THE LAW OF EVIDENCE , Sec. 12. Declaration made as to age. ' 13. Declarations as to particular facts. 14. Question of pedigree in issue. 15. Facts of infancy, insanity and death. 16. Pedigree of animals. 17. Written declarations, entries, and inscriptions. 18. Weig:ht of declarations relating to pedigree. CHAPTER IX. Declarations Relating to Matters of Public and General Rights. 1. In general. 2. Meaning of term. \ 3. Basis of admissibility. 4. Requisites of admissibility. ■ 5. Community reputation essential. 6. Subject-matter of the community reputation. 7. Private boundaries. 9. Particular facts provable by reputation evidence. 10. Declarations made_ by a surveyor. 11. Maps and charts. CHAPTER X. Public Records and Public Documents. 1. In general. 2. Scope of this exception. 3. Judicial records. 4. Legislative journals. 5. State papers. 6. Municipal records. 7. Certificates by public officials. 8. Church records of births, marriages and deaths. 9. Governmental gazettes. Newspapers. 10. Unofficial books. < 11. Accredited historical books. 12. Medical books. CHAPTER XI. Ancient Documents. 1. Meaning of the term. 2. The ancient rule.- 3. Essentials of admissibility. 4. Reason for the rule. 5. Meaning of proper custody. 6. Acts of enjoyment. - 7. Suspicious circumstances. 8. Possession under the document. 9. Mode of estimating the age of the document. 10. Scope of the rule. CONTENTS XIX CHAPTER XII. Declarations Apalnst Interest by Persons Since Deceased. Sec. 1. In general. 2. The rule. 3. The adverse interest. 4. The (interest i>artly self-serving. 5. Decjaratipns, favorable .to wife. and unfavorable to creditors. 6. Declarations by a beneficiary under a will. 7. The adverse interest contingent. 8. The adverse interest not pecuniary or proprietary. 9. Declaration by a partner. 10. Declaration by a guardian or adopted parent. 11. Declaration by a policy holder. 12. Statement that the declarant is a negro. 13. Death of the declarant a prerequisite. 14. Collateral faqts may be proved. 15. Declarations made post litem motam. 16. Form of the declaration. 17. Prerequisite of personal knowledge of the declarant. ~ CHAPTER XIII. Account-Book Entries. 1. In general. , 2. Historical development of the rule in England. 3. Historical development of the rule in the United States. 4. Scope of the rule. 5. Inadmissible to prove collateral facts. 6. The entries must be original. 7. pntries must be reasonably contemporaneous with the trans- actions. 8. Inadmissible in a suit between strangers. 9. Amount involved limited. \ 10. Verification of the entries. 11. Hule where more satisfactory testimony is obtainable. 12. Alterations, erasures, mutilations, etc. 13. Book with only one entry. 14. Entries in a separate book. 15. When ledger also admissible. 16. Entries usable, to refresh memory. CHAPTER XIV. Entries Made in the Regular Course of Business by Strangers to the Parties to the Suit. 1. In gejieral. 2. Basis of admissibility. 3. Must be made soon after transaction. XX T?IE LAW OF EVIDENCE Sec. 4. Not essential that entry be made in the performance of a duty required hy law. 5'. Bequisite of death of party who made the entry. 6. Personal kinowledge of party who makes the entry. 7. Oral statements not within the exception. CHAPTER XV. Declarations Relating to the Physical or Mental Condition of the Declarant or to His Intention. 1. In general. 2. Spontaneous exclamations always admissible. 3. Descriptive statements by the injured party. 4. Basis of admissibility of descriptive statements relaiting to pain. 5. Aveson v. Kinniard et al. 6. Statements must be contemporaneous with the pain. 7. Expert opinion admissible. ' 8. Testimony of cause of injury inadmissible. 9. Declarations by attending physician to patient inadmissible. 10. Some important discriminations. 11. Declarations indicating intention, motive or state of mind. 12. Declarations relating to wills. 13. Case of Throckmorton V. Holt. CHAPTER XVI. Declarations Forming Part of, or Relating to, the Res Gestae. 1. In general. 2. Vague use of the term. 3. The general rule. 4. Verbal acts. 5. Scope of verbal acts. 6. Action for slander or libel. ' i 7. Action for malicious prosecution. 8. Excellent illustration of the principle in the Harry K. Thaw murder trial. 9. Statements which accompany an act which is material to the principal fact in issue. 10. Utterances which are circumstantial evidence of an existing condition. 11. Spontaneous declarations which relate to the principal trans- action, but which are not verbal acts. 12. Lord George Gordon's Case. 13. Case of Regina v. Beddingfleld. 14. Case of Ins. Co. v. Mosley. 15. Case of Mutual Life Ins. Co. v. Hillmon. • CONTENTS XXI See. M. Case of McCarrick v. Kealy. 17. Declarations of bystanders. IS. Declarations of agents. 19. Declarations of prosecutrix in, a rape case. 20. Same. Various theories of admissibility. 21. Same. Scope of admissibility. 22. The res gestae doctrine ir^ bankruptcy cases. 23. The acts of which the declarations form a, part must be legally relevant. 24. Modern tendency of the courts. 25. Case of White v. City of Marquette. ■ 26. Case of' Rothrock y. City of Cedar Bapids: 27. Case of Vicksburg, etc., By. Co. v. O'Brien. 28. Case of Hutcheis v. By. Co. 29. Case of Sprinfleld, etc., By. Co. v. Puntenney. 30. Case of Com. v. "Van Horn. 31. Case of Lander v. People. CHAPTER Xyil. Opinion Evidence. 1. In general. 2. Apparent exceptions to the rule. 3. Summarized statement in the caste of Hardy v. Merrill. 4. Expert testimony of fa9ts. _ 5. Questions of sanity of testator. 6. Expert opinion evidence. 7. Chief features of expert opinion evidence. 8. EeaBOn for admitting expert opinion testimony. 9. The danger in admitting opinion testimony. 10. When the danger must be encountered.- 11. Basis of expert opinion evidence. 12. Scope of the hypothetical question. 13. Limitations of expert opinion evidence. 14. Opinion testimony on questions pertaining to values. 15. Opinion testimony on questions pertaining to amount of danidges sustained. 16. Bule where the Issue of negligence is involved. 17. Opinion testimony of medical experts. IS. Scope of expert medical testimony. 19. Opinion testimony of blood stains. 20. Expert opinion testimony in malpractice cases. 21. Expert opinion testimony on tKe trades and arts. 22. Expert opinion of mechanics and machinists. 23. Expert opinion of masons. 24. Expert opinion of artists in painting and photography. 25. Expert opinion of millers and miU-wrights. , 26. Expert opinion of cattlemen. XXll THE LAW OF EVIDENCE Sec. 27. Expert opinion of lumbermen. 28. Expert testimony of gardeners and farmers. . 29. Expert opinion of insurance men. 30. Expert opinion of railroad men. 31. Expert opinion of nautical men. 32. Expert 'Opinion of purveyors and engineers. ' 33. Expert opinion . of chemists. 34. Some miscellaneous illustrations of expert opinion " evidence. 35. Some miscellaneous illustrations of opinions not admissible. CHAPTER XVIfl. » Proof of Handwriting. 1. In general. 2. Ancient* documents, 3. Opinion testimony admissible. '' 4. Opinion of non-expert who has seen the party write. 5. Rule where the witness has corresponded with the" party. 6. Eyle where the party has acknowledged the writing as his. 7. Rule where letters of the party pass thru the witness' hands. 8. Rule where knowledge is acquired for the purpose of testi- fying. 9. Expert opinion evidence admissible. 10. An expert witness. 11. Modes of proving handwriting by comparison. 12. A comparison by juxtaposition. 13. Competency of the jury to make the comparison. 14. Reason for the common-law rule. 15. Expert opinion based upon a comparison by juxtaposition. 16. Same. The English statute. '' 17. Interpretation of the English statute. 18. "Views in the United States conflicting. 19. dase of Moore v. Untfed States. '20. Trend of the courts in the United States. 21. Genuineness of the specimen Used. 23. Rule where the specimen cannot be produced. 24. Comparison of ancient documents. \ ' 25. Use of. photographic copies for purpose of comparison. '26. Use of letterpress copies for purpose of comparison. 27. Use of iiotitious specimens on cross-examination. 28. Comparison of handwriting to prove identity of a person. PART III. Real Evidence. CHAPTER I. Inspection by Court and Jury. 1. In general. 2. Admissibility of real evidence. CONfENTS xxiii Sec. 3.. Origin of rule admitt^g real evidence. 4. "When inspection is not allowed. 5. Scope of real evidence. 6. Repulsive or indecent real evidence. 7. Voluntary exhibition of bare parts of the body. * 8. Exhibition of child for inspection of jury in a bastardy case. 9. Inspection ' of person- to detern^ine age, race, color, identity, sex, credibility, intelligence, etc. 10. Inspection of photographs by the -jury. ^• 11. Compulsory exhibition of articles for inspection of the jury. 12. Compulsory exhibition of injured parts of the body in civil cg,ses. 13. Same. Case of Union Pacific Ry. Co. v. .Botsford. 14j Same. Case of City, of South 3end v. Turner., 15. Mode of examination. . \ 16. Mode of enforcing the order. .17. When an examination should not be ordered. 18. "When the application for examination should be made. , 19. Matters pertaining to the examination. 20. Gtompulsory examination, of the. accused in a criminal case. 21. ^rnpulsory examination of the complaining witness. 22. Compulsory examination of the person in divorce cases. 23. Mode of examination where impotency is .alleged in divorce cases. CHAPTER II. ' Experimental Evidence. 1. In gener^. 2. Experiments made in the presence of the jury. Personal in- jufy cases. 3. Same. Cash register case. Cement case. 4.' Same. Some criminal cases. 5. Experiments which tend to corroborate facts established by other evidence. ' ' 6. Experiments made out of court by the Jury. 7. Experiments made out of court by witnesses. 8. Same. Experiments by experts. 9. Evidence of experiments to corroborate or exjilainj opinion evidence. 10. Evidence of experiments by non- experts. 11. Experiments made with bloodhounds. 12. Some miscellaneous illustrations of experiments. XXlV THE LAW OF EVIDENCE I PART IV. Documentary Evidence. CHAPTER I. Modes of Proving Various Documents. Sec. 1. In general. 2. Mode of proving public documents. 5. Mode of proving state statutes. 4. Mode of proving federal statutes. 5. Mode of proving ordinances. i ■6. Mode of proving judgments and other judicial records and proceedings. 7. Admissibility of docket entries, executions, etc. t. Records of court? of justices of the peace. 9. Records of courts of probate. 10. Mode of proving the statutes of sister states. 11. Presumptions as to enactment. 12. Mode of proving the common law. 13. Mode of proving statutory foreign law. 14. Printed volumes of statutes of sister states. 15. Admissibility of legislative journals. 16. Formalities prescribed by federal statute tor proving judicial records of sister states. 17. Same. Requirements of statute as to attestation. , 18. By whom the transcript may be attested. 19. Annexing the seal. 20. Judge's certificate as to the form of the clerk's attestation. ^1. Scope of application of the federal statute. 22. Mode of proving documents and records not appertaining to a court. 23. Same. Application of the foregoing statute. 24. Mode of proof provided by statute not exclusive. 25. Mode of proving state records in federal courts. 26. Mode of proving foreign public records. 27. Mode of proving federal legislative journals. 28. Mode of proving problamations, etc. , 29. Mode of proving the contents of ofHcial registers, etc. 30. Mode of proving federal court records. 31. Proving judicial records by authorized officers. 32. Proving judicial records by means of sworn copies. 33. Mode of proving quasi-Judicial records. 35. Attested documents. 36. Mode of proving attested documents. 37. Scope of the rule. 38. Qualifications of the rule at common law. CONTENTS XXV Sec. 39. Statutory restrictions of the rule. 40. Number of subscribing witnesses necessary .^ 41. Requisite conditions pertaining to the act of signing. 42. Sufficiency of the testimony. 43. Sufficiency of absence of the subscribing witness. 44. Adverse party claims interest under the document. 46. Rule not applicable to ancient documents. 45. Document collaterally in issue. 47. Rule not applicable when the attested document is acknowl- edged under a statute. 48. Secondary evidence of execution of. document. 49. Party seeking to prove the dociarrient may cross-examine the subscribing witness. 50. Mode of proving unattested writings. 51. Mode of proving the existence, organization, acts and pro- ceedings of a corporation. 52. Records of municipal corporations. 53. Reports of commercial agencies. 54. Church records, etc. 55. Tax records. Post-office records. School records. 56. Records of secret societies. 57. Entries contained in log-books. 58. Relevancy of letters and telegrams. CHAPTER 11. Alteration of Documents. 1. In general. 2. Effect of alterations. 3. Material alterations. ' 4. Immaterial alterations. 5. Effect of alterations of memoranda. 6. Alteration by an executor or administrator. 7. Alteration by a special agent. 8. Alteration by a thief. 9. Alteration by a co-obligor. 10. Authority from holder. 11. Alteration by a public officer. 12. Pilling in blanks. 13; Rights of bona flde holders in other cases. 14. When alteration not prejud'ical to obligor. 15. Effect on negotiable instruments. , 16. Same. Effect on accommodation paper. 17. Same. Effect where alteration is made with fraudulent in- tent. IS. Important distinction between executory and executed docu- ments. 19. Effect of material alteration of a deed of land. XXVI THE LAW OF EVIDENCE v Sec. 20. Effect of material alteration of a real estate mortgage. 21. Effect of material alteration of a mortgage note. 22. When recovery may be had on original consideration: 23. Admissibility of an altered document In pvidence. 24. Right to recover money paid upon an altered document. 25. Effect of ratification of alteration. 26. Presumptions and burden of proof. 27. Same. Rule as to wills. 28. Same. Alterations in pencil. 29. Province of court and jury. CHAPTER III. The Best Evidence Rule. 1. The rule. 2. Origin of the rule. 3. Importance of the rule. 4. Historical development of the rule. 5. Application of the rule in general. 6. Application of the rule to chattels. 7. Secondary evidence. 8. preliminary proof of loss or destruction of original. 9. Original in hands of adverse party. 10. Original in hands of third party. 11. Rule where the original is outside the jurisdiction of the court. ^ 12. What constitutes due notice to produce the original in court. 13. Rule where the document is privileged. 14. Rule where- the writing itself is inadmissible. 15. Rule where the document is executed in duplicate. 16. Where the pleadings give notice. 17. Where the document is not primary evidence. 18. Where possession of the document is acquired wrongfully. 19. Where the primary evidence cannot be produced. 20. Same. Where the primary evidence is in possession of an- other court. 21. Same. Where the priniary evidence is in the custody of the government. 22. Where the primai-y evidence is beyond the territorial juris- diction of the cour^. 23. Consequences of non-production of the primary evidence. 24. Recorded documents. 25. Degrees of secondary evidence. , 26; Application of the best evidence rule to telegrams. 27. Application of the best evidence rule to telepiionic communi- cations. 28. Presumption and burden of proof as to secondary evidence. CONTENTS XX Vn CHAPTER IV. The Parol Evidence Rule. Sec. 1. The rule. 2. Scope of the rule. 3. Misleading use o( the term "Parol." 4. Same. Statement by Dean Wigmore. 5. Same. Professor Thayer's view. 6. Basis of the rule. 7. Application of the rule. 8. Prior and contemporaneous agreements merge in the docu- ment. 9. The rule applicable to the legal import of the document. 10. Application of the rule to various classes of contracts. 11. Application of the rule to deeds, mortgages and leases. 12. Exceptions and limitations. 13. Incomplete writings. 14. Collateral agreements. 15. Same. Subject matter of oral agreement separate and dis- tinct. 16. Same. Oral warranties excluded. 17. Custom and usage. IS. Custom and usage distinguished. 19. Application of parol ' evidence rule to custom and usage. , 20. A custom or usage of trade must be certain and uniform. 21. It must also be continued. 22. It must also be reasonable. 23. It must also be known. 24. It must also be consistent. 25. It must also be compulsory. 26. It must also be general. '27. When parol evidence admissible to explain words and phrases. 28. To explain the meaning of code letters. The case of Kell v. ' Charmer. 29. To^explain the term "weekly account." Case of Myers v. Sari. 30. To show surrounding circumstances. Case of Reed v. In- ^ surance Company. 31. To explain an ambiguity. Lord Bacon's confusing statement. 32. , Scope of parol evidence in the case of latent and patent ambiguities. 33. Subdivision of latent ambiguities. 34. Illustrations of the two subdivisions of latent ambiguities. 35. The case of Miller v. Traverse. 36. Conflict in the decisions. Case of Doe v. Hiscocks. . 37. Parol evidence admissible for purpose of identification. 38. Satee. Application of the rule to wills. 39. To disprove the legal existence of a document. XXVlll THE LAW OF EVIDENCE See. 40. To defeat the operation of an instrument owing to fraYid, illegality, duress, incapacity of the parties, etc. 41. To show mistalie of fact. i 42. To show that a document purporting to be a. contract v/as not so intended. 43. T{) prove a trust created by operation of law. 44. To show non-acceptance. 45. To vary the effect of a receipt. 46. Application of the rule to a release. *> 47. Rule not applicable to a writing which is not evidence of a right. 48. Rule not applicable to mere clerical errors. 1 49. To show the real consideration. 50. Parol evidence admissij)le to rebut or support an equity. 51. Parol evidence admissible to prove a set-off. 52. Parol evidence admissible to prove a subsequent oral agree- ment. 53. Same. Sealed instruments. 54. Same. Statute of frauds. 55. Parbl evidence rule not applicable to third parties. 56'. "Admissibility of parol evidence to prove a reservation. 57. To show the object of the parties in executing and delivering a deed. 58. Admissibility of parol evidence in suits foi; dllncellation or reformation of documents, or for specific performance. 59. Weight and sufllciency of parol evidence. PART V. Witnesses. CHAPTER I. Competency. 1. Definition. 2. Testing the competency of a witness. 3. Incompetent witnesses at common law. -4. Same. Husband and wife. 5. Statutes relating to competency of husband and wife. 6. Where husband or wife sues or is sued in a representative capacity. 7. Suits for divorce, criminal conversation and adultery. 8. Joint action by or against one spouse and other persons. 9. One spouse a subscribing witness to a will. 10. One spouse agent of the other. 11. Indictment of one spouse for injury to the other spouse. 12. Statutory modifications. CONTENTS ' XXIX Sec. 13. Persons lacking in understanding. 14. Idiocy. 15. Competency of deaf and dumb persons. i 16. Competency of drunken persons. 17. Competency of person's under the influence of drugs. 18. Competency of imbeciles. 19. Competency of cliildren. 20. Competency of persons not of the Caucasian race. 21. Lack of religious belief. 22. Oath or afflrmation still essential. 23. Persons convicted of infamous crimes. 24. Same. Conviction in a sister state. , 25. Mode of proving conviction. 26. Effect of a pardon or a reversal of the Judgement; 2T. Effect of serving out the sentence. 28. Statutory modifications and abrogatipns. 29. Parties to the record. 30. Same. Exceptions to the rule. i 31. Same. Statutory proyisions. 32. Incompetency based upon the ground of pecuniary or prop- rietary interest. 33-. Statutory abrbgation of the common-law rule. 34. Same. Other exceptions. 36. Subscribing witnesses to A will. 36. Widow, heirs and beneficiaries. 37. Sureties and guarantors. 38. Transactions with agents and partners. 39. Members of a corporation. 40. Incompetency of person from whom title or interest is de- rived. 41. Incompetency of surviving party to a contract. 42. Same. Statutes very broad. 43. Persons to whom the statutes apply. 44. Accomplices. 45. Same. Participation in an act to entrap. 46. Credibility of accomplices. 47. Attorneys. 48. Judges. 49. Grand jurors. 50. Petit jurors. 51. Same. Tlie Iowa rule. 52. Arbitrators. CHAPTER II. Privileged Communications. 1. Definition. 2. Fundamental conditions. 3. The law of the forum governs. , XXX THE LAW OF EVIDENCE ^ Sec. 4. General classification. 5. Professional communications. 6. Effect of the rule. 7. Scope of the rule. 8. Same. Rul,e applicable toi intermediaries. 9. Purpose of the communication. , 10. Communications made to third party. 11. Retainer fee. 12. Communications before or after the relation. 13. Limitations of the rule. 14. Rule where several persons employ the same attorney. 15. Communications with a patent solicitor. 16. Communications with a judge. 17. Relation of the communication to certain matters. 18. Matters which are not privileged. 19. Privilege for clieht's benefit. Waiver. 20. Communications between physician and patient. 21. Privilege for patient's benefit. Waiver. 22. Communications to spiritual advisers. 23. Affairs of state. Political comrnunications. 24. Same. Rule criticised. 25. Application ot-rule. 26. Who determines the question. 27. Matters pertaining to the administration of penal justice. 28. Scope of the privilege. 29. Social communications. 30. Scope of the privilege. 31. Right to waive the privilege. 32. Judicial communications. » CHAPTER III. Examination of Witnesses. 1. In general. 2. Order of conducting the examination. 3. Testimony given viva voce. 4. Testimony must be under oath or affirmation. 5. Effect of testifying without being sworn. 6. Modes of binding the conscience. 7. Usual form of thp oath. 8. Same. Mode of administering the oath. 9. Interpreters. — Deaf and dumb witnesses. 10-. Atheists as witnesses. 11. Variant views as to the purpose of the oath. 12. Testimonial capacity of children. 13. Same. The theological test. 14. Capacity of an insane person to take an 'Oath. 15. Modification of common-law rule pertainin^r . to theological belief. CONTENTS KXXl Sec. 16. Compelling attendance of witnesses. 17. Sapie. Right of an accused person to oonopulsory process. , 18. Same. Real party in interest. 19. Same. Female witnesses. ^ ^ 20. Witnesses privileged from arrest, etc. 21. Witnesses compelled to testify. 22. Same. Executive, judicial and legislative officers. 23. Same. Ambassadors and consuls. 24. Obligations of a witness. 25. Statutory regulations. 26. Admissions and testimony given at a former trial. ^7. Exclusion of witnesses. 28. Same. Effect of refusal to obey the court's order. 29. The examination in chief. In general. 30. Control of the judge. 31. Preliminary questions. 32. "Leading questions. 33. Same. Cases in which leading questions are allowable. 34. Questions that are objectionable on other grounds. 35. Irresponsive answers. 36. Illustrations of irresponsive answers. 37. Impressions may fall short of positive assurance. 38. Same. Illustrations. ' 39. Refreshing' of memory. Adopting past recollection. 40. Right of opposing counsel to inspect memorandum. 41. When the memprandum itself is admissible. 42. Necessity of refreshing memory. 43. Impropriety of counsel assuming facts. 44. Anticipating the defence. 45. The oross-examinatibn. Irt general. 46. Scope of the cross-examination. 47. Same. The American rule correct upon principle. 48. The American rule liberally construed. 49. Scope of the rule where the credibility of the witness is in- volved. L 50. Same. Application of the rule to collateral and irrelevant matters. 51. Rule where question relates to previous statements. 52. Questions which concern collateral specific misconduct of the witness. 53. Collateral matter brought out in direct examination. 54. Voluntary statements in direct examination. 55. Rule where a witness is called to the stand by the court. 56. Right to cross-examine wliere preliminary examinations are made by the court. 57. Answers of a witness which may riot be contradicted. 58. Rule where opposing counsel are deprived of opportunity to cross-examine. XXXll THE LAW OF EVIDENCE Sec. . 59. Self-contradiction on cross-examination. 60. Rule where witness is sworn but does not testify. 61. Importance of cross-examination. Its dangers. 62. Leading questions allowable. 63. Impertinent questions improper. 64. Questions which call for new matter objectionable. 65. Assuming facts not in issue objectionable. 66.' Argumentative questions improper. 67. Repeating questions, or testimony, objectionable. 68. Proving conviction of crime. 69. Proving arrest and indictment. . '70. Proving that witness has been imprisoned. 71.^When answer is conclusive. , 72. Extent of the cross-examination. 73. Preliminary questions on cross-examination. 74. The redirect examination. 75. Same. Cpnversations, etc. 76. Witness discredited on cross-examination. 77. Rule as regards irrelevant testimony. 78. Repetition of testimony not usually g,llowable. 79. Change of conduct and reasons therefor. 50. Identification of writing. 51. Leading questions. ■82. Discretion of the trial court. S3. The recross-examination. 84. Impeachment of witnesses. In general. 85. Presumption of credibility. S6. What witnesses may be impeached. 87. Party may not impeach his own witness. 88. Same. Inconsistent statements out of court. S9. Calling the adverse party or his witnesses to the stand. 90. Impeaching a witness by showing his general reputation. 91. Time and place of reputation. ■92. Scope of general reputation. 93. Testimony as to particular facts inadmissible. 94. impeaching credibijity by showing conviction of crime. 95. Unchastity of prosecutrix in rape case- 96. General reputation ■ for violence. 97. Hostility, bias, sympathy, etc. 98. Same. Cross-examination. 99. Opinion testimony as to credibility of witness. 100. Number of impeaching witnesses. 101. Effect of impeachment. 102. Sustaining testimony. 103. Scope of sustEVining testimony. 104. Personal opinion of sustaining witness based upon general reputation. i PART I. Preliminary Topics. CHAPTER I. Judicial Notice. § I. In general. — The subject of judicial notice is closely allied to the law of evidence but in the strict sense it does not form a part of it. Facts which are judicially noticed do not have to be [ proved by evidence. The doctrine of judicial no- tice is that it would be unreasonable for courts to require formal proof of facts ot common knowledge, or of facts which the courts, owing to their official character, are charged with knowledge or can readily ascertain. The doc- trine is applicable not only to the facts in issue but also to material evidentiary facts. Courts may take judicial notice of facts not alleged in the pleadings. They may also take judicial notice that certain alleged facts in a pleading that is demurred to are not true. As regards facts which are judicially noticed courts may acquire information from any source. To such information the exclusionary rules of evidence do not apply. Certain classes of facts courts ai'e obliged to judicially notice. As regards many other facts, however, they may exercise their discretion. Public laws, matters of public interest, matters of universal notoriety and matters peculiarly 2 THE LAW OF EVIDENCE. within the knowledge of the particular court must be judicially noticed. § 2. Public laws.^ — Public laws include the con- stitution of the United States, treaties of the United States, constitutions of the several states, public acts of congress^ public statutes of the sev- eral states, international laws and the common law including the law merchant. The federal constitution is judicially noticed by all the courts of this country, both federal and state. State constitutions are judicially noticed by the courts of their respective states and, with one exception, by the federal courts. When a case is taken from the highest court of a state to the supreme court of the United States the lat- ter court does not take judicial notice of the pub- lic laws of the sister states. Barring this excep- tion the supreme court of the United States takes judicial notice of the public laws o,f the various states of the Union. It also takes judicial notice of the federal pubhc statutes. Treaties of this country are judicially noticed both by the federal and state courts. Treaties of foreign countries, however, are facts that must be proved. And foreign statutes must be proved in both the fed- eral and state cOurts. The statutes of one state are foreign to the sister states and are not judic- ially noticed by the courts of the sister states. The English common law is judicially noticed by both the federal and the state courts. The com- mon law of a state is judicialh'- noticed by the courts of that state, but not by the courts of the JUDICIAL NOTICE 3 sister states. It is also judicially noticed by the federal courts, barring the one exception in the case of the federal supreme court heretofore stated. Municipal charters are judicially noticed by the courts of the state in which they operate,* but not by the courts of the sister states. They are also judicially noticed by the federal courts, barring the one exception heretofore stated. Municipal ordinances are judicially noticed by the courts of the municipality in which they op- erate^ and by courts of appeal to which cases are taken from that municipality.' The charters of railway corporations and banks are, by the weight of authority, judicially noticed. General incorporation statutes are judicially noticed but not the corporations organized under thein. Spe- cial incorporation statutes are not judicially no- ticed unless they so provide. Private statutes are not judicially noticed. Nor are foreign cor- porations. § 3. Meaning of public laws. — Generally speak- ing, laws are public, as distinguished from pri- vate, when they extend to. all persons within the same territorial limits.* They are not necessar- ily private because they operate upon local sub- 1. State V. Sherman, 42 Mo. 210; Smith v. Janesville, 52 Wis. 280. 2. Incor. Town of Scranton v. Danenbaum, 109 la. 93, 80 N. W. R. 221; Downing v. Miltonville, 36 Kan. 740, 14 Pac. R. 281. 3. City of Portland v. Yick, 44 Ore. 439, 75 Pac. R. 706. 4. Levy v. State, 6 Ind. 284. 4 THE LAW OF EVIDENCE. jects. As said in the Indiana case cited, and ap- provingly quoted by the federal supreme court,^ "Statutes incorporating counties, fixing their boundaries, establishing court-houses, canals, turnpikes, railroads, etc., for public uses, all op- erate upon local subjects. They are not for that reason special or private acts." In the Indiana case cited the statute in question regulated the sale of liquor in a certain locality. Courts have taken judicial notice of statutes which regulate traffic in lumber within a certain district;® pro- hibit fishing within certain limits ;^ fix or change city or county boundaries;^ establish or change a county seat;® increase the jurisdiction of a cer- tain county court. ■^'' Public statutes have been defined as "those that relate to or bind all within the jurisdiction of the law-making power, limit- ed as that power may be in its territorial opera- tion or by constitutional restraints. "^^ § 4. Matters of public interest. — Matters of public interest of which courts take judicial no- tice include matters of history; geographical features; titles and se«Lls of foreign sovereigns; the principal state officers; heads of depart- ments ; proclamations of war and peace ; sittings 5. Unity V. Burrage, 103 U. S. 447. 6. Pierce v. Kinmball, 9 Me. 54. 7. Burnham v. Webster, S Mass. 266. 8. Com. V. Springfield, 7 Mass. 12. 9. State ex rel. Cothren v. Lean, 9 Wis. 279. 10. Meshke v. Van Doren, 16 Wis. 319. 11. Sedgwick Stat. Const. Law. J. 30. JUDICIAL NOTICE 5 of congress and of state legislatures; weights and measures; judges of the various courts, their seals and terms of court as regulated by law ; foreign notaries and their seals ; flags of foreign countries ; ordinary public feasts and fes- tivals; meanings of common abbreviations, etc. § 5. Territorial divisions. — Courts take judi- cial notice of the territorial extent of the nation and of the several states. Also of the division of the state into counties, towns, and cities.^^ Coui-ts also take judicial notice of the subdivi- sion of cities into blocks ;^''' the areas of coun- ties,^* and their geographical situation ;^^ the geographical situation of towns and cities;^® the- boundaries of internal revenue districts,^'' and of judicial and congressional districts.^* i § 6. National and state officials. — Courts take judicial notice of public matters that concern the national and state governments.^* These include the accession and death of the principal govern- mental officers, including the chief magistrate of the nation or state, members of the cabinet, sena- tors, judges, heads of bureaus,*" foreign min- 12. Grange v. Chapman, 11 Mich. 499. 13. Herrick v. Morill, 37 Minn, 2S6, 5 Am. St. Rep. 841. 14. Bd. of Com. V. State, 147 Ind. 476, 48 N, E. R. 908. 15. S'tate V. Pennington, 124 Mo. 388, 27 S. W. R. 1106. 16. State V. Reader, 60 la. 527. 17. United States v. Jackson, 104 U. S. 41. 18. United States v. Johnson, 2 Sawy. (U. S.) 482. 19. Taylor v. Barclay, 2 Sim. 21. 20. York Ry. Co. v. Winans, 17 How. 30. O THE LAW OF EVIDENCE. isters, United States marshals,^^ etc. All mat- ters prescribed by public law are, of course, judi- cially noticed. These include terms of office of public officials, their functions, jurisdiction, times of election, etc.^^ The principal officials of the state and nation, executive, legislative and judi- cial, are judicially noticed. ^^ § 7. Official seals and signatures. — At the English common law the seals used by public officials were judicially noticed but not their signatures.^* English statutes provide, however, that their signatures shall be judicially noticed. In this country both the signatures and seals of the principal government officials are judicially tioticed.^^ Moreover, the seals, and signatures of even subordinate' public officials are judicially noticed.^® § 8. Customs and usages. — Courts take judi- cial notice of general customs and usages. Thus, they judicially notice the custom of observing Sundays and the great festivals •^'^ what is known as the law of the road in passing vehicles ;^^ well 21. Brown v. Piper, 91 U. S. 37. 22. Brown v. Piper, supra; York Ry. Co. v. Winans, supra; Hizer v. State, 12 Ind. 330; Fox v. Com. 81 Pa. St. 511. 23. People v. John, 22 Mich. 461. See notes, 20 L. R. A. 382; 13 Am. Dec. 192. 24. Taylor, Evid. § 14. 25. Dyer v. Last, 51 III. 179; Bishop v. State 30 Ala. 34. 26. Fox V. Com., supra (justice of the peace) ; Bishop v. State, supra (clerk of court). 27. Sasser v. Farmer's Bank, 4 Md. 409. 28. Turley v. Thomas, 8 C. & P. 103; Taylor, Ev. §35. JUDICIAL NOTICE 7 known customs of railway corporations and banks f^ the law merchant,^" etc. § 9. Matters of history. — Courts take judicial notice of great historical events, such as the civil war; Sherman's march to the sea, etc.*^ § 10. Meanings of words, phrases and abbre- viations. — Courts take judicial notice of the meaning of current words, phrases and abbre- viations that are commonly understood. ^^ Thus, courts have taken judicial notice of the meaning of the terms "malt liquor;"^* "whiskey;"** "squatter riot;"*^ "gift enterprise;"*® "Beecher business ;"" "C. O. D. ;"*« "f. o. b. ;"*» "to have charge of the. sack;"*" "realized the fable of the frozen snake/'*^ On the other hand they have 29. Isaacson v. N. Y. Cent. Ry. Co. 90 N. Y. 278, 46 Am. Rep. 142; Munn v. Burch, 25 111. 35. 30. Barnett v. Brandao, 6 M. & Gr. 630; Sanberg v. Am. Exp. Co., 136 Mich. 639, 99 N. W. R. 879. 31. Williams v. State, 67 Ga. 260. 32. Linck v. Kelley, 25. Ind. 278, 87 Am. Dec. 362. 33. Frese v. Stalte, 23 Fla. 267. 34. Frese v. State, suprp,. 35. Clarke v. Fitch, 41 Cal, 472. 36. Lohman v. State, 81 Ind. 15. 37. Bailey v. Kal. Pub. ~Co., 40 Mioh. 251. 38. State v. Intox. Liquors, 73 Me. 278; contra McNichol V. Pac. Exp. Co., 12 Mo. App. 401. 39. Vogt V. Schienebeck, 122 Wis. 491. 40. Edward v. San Jose Printing Co., 99 Cal. 431, 34 Pac. R. 129. 41. Hoare v. Silverlock, 12 Adol. & Ell. N. S. 624. e THE LAW OF EVIDENCE. refused to take judicial notice of the meaning of the terms "quar.";*=^ "C. B. & Q. Ry. Co."^^ § ii. Facts which invariably OGCur.^Courts judicially notice events which invariably happen in the course of nature. Thus, courts have judi- cially noticed the recurrence of the seasons ;** the time at which the sun and moon rise and set;*^ the courses of the planets f^ coincidences of the days of the week and month;*'' general times of planting and harvesting;** laws of nature per- taining to birth ;*'' average duration and expect- ancy of human life;^" difference of time at two places having different longitudes. ^^ It is essential, however, that the events invari- ably occur. Thus, courts will not take judicial notice that cattle are liable at certain seasons of the year to communicate disease f^ that the age of a tree can invariably be determined by esti- mating the number of concentric layers in the trunk ;^^ that lakes and streams are invariably 42. O'Connor v. Decker, 95 Wis. 202. See also note, 89 Am. Dec. 692. 43. Alcolo V. Chicago, B. & Q. Ry. Co., 70 la. 185. 44. Allman v. Owen, 31 Ala. 167; Wilson v. Van Leer, 127 Pa. St. 37i; 14 Am. St. Rep. 854. 45. People v. Chee Kee, 61 Cal. 404. 46. Tutton V. Drake, 5 Hurl. & N. 649. 47. Sprowl V. Lawrence, 33 Ala. 673. 48. Wetzler v. Kelly, 83 Ala. 440. 49. Whitman v. Staite,/34 Ind. 360. 50. Gordon v. Tweedy, 74 Ala. 232, 49 Am. Rep. 813. 51. Curtis V. March, 4 Jur. N. S. 1112. 52. Bradford v. Floyd, 80 Mo. 207. 53. Patterson v. McCausland, 3 Bland. (Md.) 69. JUDICIAL NOTICE 9 closed at certain times of the year, owing to the condition of the weather ;^* or that a certain crop of peaches matured on a certain date.^® § 12. Matters peculiarly within the knowledge of the particular court. — Certain facts which in- herently pertain to the particular court are judi- cially noticed. These facts include the records of the court ; its officers ; its terms of court ; its jurisdiction and its rules of court. § 13. Matters of universal notoriety. — Facts which are known to practically everybody, courts will judicially nptice. This field of judi- cial notice is an extensive one. It includes many facts which are judicially noticed because they are also' matters of public interest. Among them are various natural phenomena. Facts whose notoriety is limited are not in- cluded in this class. As to such facts the ques- tion of taking judicial notice of them rests in the discretion of the court. < § 14. Principles of science and art. — Princi- ples of science and art that constitute facts of general knowledge are usually judicially noticed. Thus, courts have taken judicial notice that na- tural gas is an inflammable and explosive sub- stance and that it is inherently dangerous;^® that 54. Haines v. Gibson, 115 Mich. 131, 73 N. W. R. 126. 55. Culverhouse v. Worts, 32 Mw.App. 419., ,56. Jamieson v. Indiana Gas Co., 128 Ind. 555. lO THE LAW OF EVIDENCE. various liquors, such as beer,^^ gin,^^ wine,^* whiskey,®" apple brandy*^ and blackberry brandy"^ are intoxicating; that the use of cigar- ettes is deleterious to health f^ that tobacco and cigars do not constitute drugs and medicines f* that splenetic (Texas) fever is infectious f^ that fine coal dust is explosive.®® On the other hand they have refused to take judicial notice that gin and turpentine are inflammable.®'' Again, one court may judicially notice what another court may refuse to judicially notice. Thus, one court has judicially noticed that kerosene oil is a re- fined earth oil,*^ whereas another court has re- fused to do so.®^ § 15. J.urors.^To a limited extent the doctrine of judicial notice is applicable to jurors.' Their chief function is to weigh the evidence and ren- der their verdict accordingly. They may not use' 57. Watson V. State, 55 Ala. 158; Briffitt v. State, 58 Wis. 39, 46 Am. Rep. 621. 58. Com. V. Peckham, 2 Gray (Mass.) 514. 59. Caldwell v. State, 43 Fla. 545, 30 So. 814. 60. Schlichi v. State, 56 In'd. 173. 61. Thomas v. Com. 90 Va. 92. 62. Fenton v. State, 100 Ind. 598. 63. Ausltin v. State, 101 Tenn. 563, 70 Am. St. Rep. 703.. 64. Com. V. Marzynski, 149 Mass. 68. 65. Dorr Cattle Co. v. The Chicago, Gt. West. Ry. Co., 128 la. 359. ^ 66. Cherokee Coal Co. v. Wilson, 47 Kan. 460. 67. Mosley v. Vermont Ins. Co., 55 Vt. 142. 68. Morse v. Buffalo Ins. Co., 30 Wis. 534. 69. Bennett v. N. Brit. & M. Ins. Co., 8 Daly (N. Y.) 471.. PRESUMPTIONS II private knowledge they may have in I'egard to the facts in issue, but they may take notice of and act upon matters of common knowledge the same as judges. ''' Moreover, they may act upon general practical knowledge they may have that would naturally aid them in reaching a just ver- dict. Thtis, they may make use of such knowl- edge in estimating the credibility of witnesses .;'^^ the characteristics of certain domestic animals as to their propensity to become frightened ;''^ the natural instinct of self-preservation, etc.''^ 70. Head v. Hargrave, ipS U. S. 45 ; Briffit v. State, supra ; Com. V. Peckham, supra; State v. Maine Cent. Ry. Co., 86 Me. 309. 71. Jenny Electric Co. v. Branham, 145 Ind. 314, 41 N. E. R. 448. 72. State V. Maine C. R. Co., 86 Me. 309. 73. Chase V. Ry. Co., 77 Me. 262; Chicago & E. I. Ry. Co. V. Beaver, 119 III. 34, 65 N. E. R. 144. CHAPTER 11. Prestunptions. § I. Definition. — A presumption is an infer- ence of the existence or nonexistence of a fact or facts from the ex;istence or nonexistence of some other fact or facts based upon a prior experience of their connection.^ § 2. Classification.- — Presumptions are of two 1. Ins. Co. V, Weide, 11 Wall. (N. S.) 438. 12 THE LAW OF EVIDENCE. kinds — (i) Presumptions of law and (2) Pre- sumptions of fact. Some authors add a third — Presumptions of law and fact. Presumptions of law are subdivided into (i) disputable presumptions of law and (2) con- clusive presumptions of law. § 3. Attributes. — A presumption of law is a rule of law binding on the court and jury. If dis- putable, it is sufficient to establish a prima facie case on the point involved. If conclusive, testi- mony is inadmissible to contradict it.^ A con- clusive presumption of law is in fact a rule of the substantive law.* A presumption of fact is not a rule of law but merely circumstantial evidence.* Its weight de- pends upon the circumstances of the particular case. The question is one for the jury to decide. Owing to the fact that this presumption is de- ducible from one or more facts by a natural pro- cess of reasoning, and is not governed by arti- ficial rules like a presumption of law, it is some- times designated a natural presumption. Presumptions go into the scale pan and take the place of evidence. In no case, however, do they cause the burden of proof in its true sense to shift. Disputable presumptions of law, how- ever, establish a prima facie case upon the point involved and in consequence shift the bur- den of proceeding with evidence. They do not, 2. 1 Greenleaf Ev. § 44. 3. Brown v. Oldhanl, 123 Mo. 621", 27 S. W. R. 409. 4. 1 Greenleaf Ev. § 44. PRESUMPTIONS 1 3 however, shift the burden of proof in its true sense. When a disputable presumption of law has been fully met by rebuttal evidence it loses its arbitrary power. It must then be given effect according to its evidential character which must be determined in the light of reason and logic. Presumptions operate prospectively and not retroactively. § 4. Incapacity of infalnts; — At common law an infant under seven years of age is conclusive- ly presumed incapable of committing any crime.^ Between seven and fourteen he is also presumed incapable, but the presumption is rebuttable.* If he is at least fourteen he is presumed capable. '^ A boy under fourteen years of age is conclusive- ly presumed incapable of committing rape.® In some states, however, the presumption is rebut- table." A girl of tender years is conclusively pre- sumed incapable of consenting to sexual inter- course. The age is usually fixed by statute. It va- ries in the several states from ten to eighteen. In Queen Elizabeth's reign an act was passed fixing it at ten years. ^^ 5. Reg. V. Smith, 1 Cox Cr. Cas. 260. 6. Reg.' V. Smith, supra. 7. Reg. V. Smith, supra. 8. Reg. V. Jordan, 9 Car. & P. 118; McKinny v. State, 29 Fla. 565, 10 So. 732, 30 Am. St. Rep. 140. 9. Com. V. Green, 2 Pick. (Mass.) 380; Gordon v. State, 93 Ga. 531, 21 S. E. R. 54, 44 Am. St. Rep. 189; Hilta- biddle v. State, 35 Ohio St. 52, 35 Am. St. Rep. 592. 10. Russ., Crimes 810. 14 THE LAW OF EVIDENCE § 5. Legitimacy. — A child born in lawful wed- lock, or within due time after its severance by the death of the husband or otherwise, is pre- sumed legitimated^ The presumption arises even when the husband -and wife live apart by mutual consent. ^^ Ordinarily the presumption is con- clusive.-'* This is on the ground of morality and decency. When, however, the circumstances are such as to render it impossible, or even highly improbable, it may be rebutted.^* To bastardize a child, however, born in lawful wedlock, the proof must be clear and convincing.^^ Testi- mony by the husband or wife, or. declarations by them to third parties, tending to prove or dis- prove non-access is inadmissible.-'* But testi- mony by the wife that she had, or did not have, intercourse with one or more men other than her husband is admissible.-''^ And testimony by the wife that her child was born before she was mar- 11. Gaines v. Herman, 24 How. (U. S.) 553; Strode v. Mc- Gowan; 2 Rush (Ky.) 621. See note 56 Am. Dec. 206. 12. Banbury v. Peerage, 1 Sim. & St. 153. 13. Steph. Ev. art. 98; Hynes v. McDermo^t, 91 N. Y. 451, 43 Am. Rep. 677; Watts' v. Owens, 62 Wis. 512. 14. Banbury v. Peerage, supra. 15. Citations in note 13; Egbert v. Greenwalt, 44 Mich. 245, 6 N. W. R. 654, 33 Am. Rep. 260; Shumati v. Shuman, 83 Wis. 250. 16. Mink V. State, 60 Wis. 583;. Shuman v. Shuman, supra; Rex V. Sourton, 5 Adol. & Ell. 180; Dennison v. Page, 29 Pa. St. 420, 72 Am. Dec. 644; Clap v. Clap, 97 Mass. 531; Com. v. Shepherd, 6 Binn. (Pa.) 283, 6 Am. Dec. 449; People v. Overseers, IS Barb. (N. Y.) 286. 17. Rex V. Luffe, 8 East 193; Rex v. Rook, 1 Wils. 340. PRESUMPTIONS 15 ried is admissible. It is also permissible to show the impotency of the husband.^^ § 6. Necessaries. — A minor living with either or both of his parents is presumed to be proper- ly supplied with necessaries.^" And when he is supplied with necessaries by his parent or guard- ian he is presumed not to be in need of credit.^" §, 7. Innocence. — Persons accused of crime are presumed innocent until their guilt is established beyond a reasonable doubt. This is the most highly favored of the disputable presumptions of law.2i § 8. Knowledge. — All persons amenable to punishment are conclusively presumed' to know the law. This presumption is based upon public policy.^^' § 9. Custom. — Proof that a custom has exist- ed during the memory of man raises a conclusive presumption that it has existed immemorially. And proof that it has existed immemorially rais-, es a conclusive presumption of its legal origin. ^^ 18. Wright V. Hicks, IS Ga. 160, 60 Am. Dec. 687; Weath- erford v. Weatherford, 20 Ala. 548, 56 Am. Dec. 206 and long note. 19. State V. Cook, 12 Ired. (N. C.) 67; Perrin v. Wilson, 10 Mo. 451. 20. Nidholsan v. Wilburn, 13 Ga. 467. 21. Ross V. Hunter, 4 T. R. 33; Taylor, Ev. sec. 112; Best Ev. sec. 346. 22. Upton V. Tribikock, 91 U. S. 51; Wills v. Noyes, 12' Pick. (Mass.) 324. 23. Bryant v. Foot, L. R. 2 Q. B. 161, Thayer's Gas. Ev. 85; Ingfaham v. Hutchinson, 2 Conn. 584. ]6 THE LAW OF EVIDENCE § lo. Marital relation. — When a man and wo- man cohabit as husband and wife and are reput- ed to sustain that relation toward each other they are presumed to be legally married.^* The presumption in such a case is given great weight ; especially when the legitimacy of their children is involved. § II. Absent and unheard of. — When a person has been absent for at least seven years and un- heard of by those who naturally would have heard of him if living, he is presumed to be dead. This presumption is sufficient to establish a prima facie case upon this point but it is rebutt- able.2^ ~ § 12. Coercion. — When a married woman commits a crime in the presence of her husband she is usually presumed to have been coerced by him.^® This prfesumption does not arise, how- ever, in cases of treason,^^ murder,^^ felonious wounding, keeping a bavvdy house^^ and high- 24. 1 Bish. Mar., Div. & Sep. sec. 943; Cargile v. Wood, 63 Mo. SOI ; Hynes v. McDermott, supra; Applegate v. Applegate; 45 N. J. Eq. 116. See full note 57 Am. Rep. 451-463. 25. Hyde Park v. Canton, 130 Mass. 505; Winship v. Con- ner, 42 N. H. 341; Com. v. Thompson, 6 Allen 591. 26. Rex. V. Price, 8 Car. & P. 19; Com. v. Neal, 10 Mass. 152, 6 Am: Dec. 105 and long note; State v. Miller, 162 Mo. 253, 85 Am. St. Rep. 498; Davis v. State, 15 Ohio 72. 45 Am. Dec. 559. 27. Miller v. State, 25 Wis. 84. 28. Miller v. State, supra. 29. State v. Bentz, 11 Mo. 27; Rex. v. Dixon, 10 Mod. 335. PRESUMPTIONS 1 7 way robbery.*" In those cases in which it arises it is rebuttable.*^ § 13. Malice. — A person who feloniously kills another by means of a deadly weapon is presum- ed to have acted maliciously.*^ § 14. Intent. — A sane person is presumed to have intended the natural and probable conse- quences of his voluntary acts. Ordinarily this presumption is conclusive.** It is otherwise, however, in the case of crimes involving specific intent and where fraud or mistake of fact is shown. § 15. Adverse user. — Continuous adverse user of real estate for twenty years raises a conclu- sive presumption of title.** In some states this 30. People v. Wright, 8 Mich. 744; Rex. v. Torpey, 12 Cox Cr. Cas. 45. 31. Franklin's Appeal, 115 Pa. St. 534, 2 Am. St. Rep. 583; Ferguson v. Brooks, 67 Me. 251; Brazil v. Moran, 8 Minn. 236, 83 Am. Dec. 772 and note. 32. Spies V. People, 122 111. 1, 3 Am. St. Rep. 320; Maher V. People, 10 Mich. 212; Green v. State, 28 Miss 687; Com. V Drew, 4 Mass. 391; Oliver v. State, 17 Ala. 587; Murphy v. People, 37 111. 447; State v. Willis 63 N. C. 26. 33. Com. V. York, 9 Mete. (Mass.) 93, 43 Am. Dec. 373; Davis V. Markshansen, 103 Mich. 315, 61 N. W. R. 504; Fonseca v. Cunard S. S. Co., 153 Mass. 553, 27 N. E. R. 665, 12 L. R. A. 340, 25 Am. St. Rep. 660; Germania Ins. Co. V. Memphis & C. R. Co., 72 N. Y. 90, 28 Am. Rep. 113; Ryan v. Ins. Co. 41 Con. 168, 19 Am. Rep. 490. 34. Wallace v. Fletcher, 30 N. H. 434; Rooker v. Perkins, 14 Wis. 79; Fletcher v. Fuller, 120 U. S. 534 and cases cited; Strimpfler v. Roberts, 18 Pa. St. 283, 57 Am. Dec. 606. l8 THE LAW OF EVIDENCE time-limit has been decreased by statute. It varies in the several states. § i6. Peaceful possession. — Peaceful posses- sion of personal property raises a presumption of ownership. Thus, peaceful possession of a bill of lading by the consignee raises a presump- tion of ownership in him.^^ And peaceful posses- sion of a negotiable note payable to bearer or order and endorsed in blank by the payee raises a presumption of ownership.^® Also when the note is not endorsed." § 17. Wife's authority. — A wife living with her husband is presumed to have authority to pur- chase on his credit such necessaries as she may think proper.^^ No such presumption arises, however, where she is living apart from her hus- band. ^^ In the former case the presumption may be rebutted by showing that the purchase was made on the credit of her separate estate or on that of a third party;*" or by showing that the seller had been given due notice not to sell her 35. Lawrence v. Minturn, 17 How. (U. S.) 107. 36. Rubey v. Culbertson, 35 la. 264; Collins v. Gilbert, 94 U. S. 7S3; Bachelor v. Priest, 12 Pick. 399; Mars v. Mars, 27 S. C. 132. 37. Vastine v. 'yVilding, 45 Mo. 89, 100 Am. Dec. 347 and note. See full note, 17 L. R. A. 326. 38. Freestone v. Butcher, 9 Car. & P. 643 ; Montague v. Bene- dict, 3 Barn. & C. 631; 1 Bish., Mar. & Div. sec. 1197. 39. Rea v. Durkee, 25 111. 503; Stutevant v. Starin, 19 Wis. 268; Mitchell y. Treanor, 11 Ga. 324, 56 Am. Dec. 421. 40. Carter v. Howard, 39 Vt. 106; Pearce v. Darrington, 32 Ala. 227; Weisker v. Lowenthal, 31 Md. 413. PRESUMPTIONS 1 9 goods on his credit, provided that he himself had not been delinquent in supplying necessaries.*^ § i8. Continued existence. — Proof of the ex- istence of a thing at a given time raises a pre- sumption of its continued existence.*^ And proof that a person was living at a given time raises a presumption of continuance. of life.*^ This pre- sumption arises even when the person's health is very bad." The presumption is rebuttable, however, by either direct or circumstantial evi- dence.*^ § 19. Contributory negligence. — A child of tender years is presumed incapable of contribu- tory negligence. The age varies according to the precocity of the child. The cases show that it may arise where the child is not more than seven years of, age.*® § 20. Time of payment. — In the absence of agreement as to time of payment, a presumption arises that goods sold are to be paid for on deliv- ery. 41. 1 Bish. Mar. & Div., sec. 1196. 42. State v. Chittenden, 127 Wis. 468; Berrenberg v. City of Boston, 137 Mass. 231, SO Am. Rep. 296 and long note; Martin v. Fishing Ins. Co., 20 Pick. (Mass.) 389, 32 Am. Dec. 220. 43. Chicago & A. R. Co. v. Keegan, 185 111. 70, 56 N. E. R. 1088; Peabody v. Hewett, 52 Me. 33, 83 Am. Dec. 486. .44. In re Hall, 1 Wall. Jr. (U. S.) 85. 45. Taylor Ev. (10th ed.) sec. 198. 46. Chicago Ry. Co. v. Ryan, 131 111. 474; Kay v. Penn. Ry. Co. 65 Pa. St. 269; Norfolk Ry. Co. v. Ormsby, 27 Gratt, (Va.) 455; Gardner v. Grace, 1 Post. & F. 359. 20 THE LAW OF EVIDENCE § 21. Order of payment. — Payment of a sub- sequent debt .raises a presumption that all prior debts which are due have been paid.*^ And a re- ceipt for the last installment of a debt raises a presumption that all prior installments have been paid. § 22. Receipt of letters and telegrams. — Let- ters properly addressed, stamped and mailed are presumed to reach their destination in due time.** A similar presumption arises in the case of telegrams.*^ § 23. Authority of agents. — When agents of a private corporation act within the apparent scope of their authority a presumption arises that their acts are atithorized by all necessary form- alities. Thus, meetings of the corporation are presumed to have been regularly held. § 24. Identity of persons. — Presumptions of identity of persons sometimes arise from identity of names. Their weight depends upon circum- stances. Similarity of occupation, place of abode, age, etc., are material. Much depends upon whether the name is a vei;y common one or an unusual one.^" In the former case the presump- 47. Attleborough v. Middleborough, 10 Pick. 378; Decker V. Livingston, IS Johns. (N. Y.) 479. 48. Oregon Steamship Co. v. Otis, 100 N. Y. 446, S3 Am, Rep. 221; Briggs v. Hervey, 130 Mass. 186; Schutz v. Jordan, 141 U. S. 213. 49. Oregon Steamship Co., supra. 50. Sanberg v. State, 113 Wis. S78; Smith v. Henderson, 9 M. & W. 798. PRESUMPTIONS 21 tion is very weak if it arises at all. No presump- tion arises in any case where it would establish an inconsistent relation."^ § 25. Parental control. — A minor is presumed to be under parental control and not emancipat- ed unless there is proof to the. contrary. ^^ § 26. Suppressing testimony. — Testimony which is suppressed, where a duty to produce it exists, is presumed to be unfavorable to the party who withholds it..^* § 27. Destroying a document. — A person who wilfully destroys documentary testimony is pre- sumed to do so fraudulently; and unless he shows a legal excuse for the act he is estopped from introducing secondary testimony of the context of the document.^* § 28. Attejnpted flight. — Attempted flight by a person accused of crime raises a presumption of fact of his guilt. § 29. Resulting trust. — When an agent, with his principal's consent, purchases real estate with the latter's money and takes title in his own name, a presumption arises that he holds the legal title in trust for his principal. 51. Goodell V. Hibbard, 32 Mich. 48; Jones v. Jones, 9 M. & W. 75. 52. Fitzwilliam V. Troy, 6 N. H. 166. See note, 18 Am. St. Rep 652. 53. Ccle V. Lake ,Sh!ore Ry Co., 95 Mich. 11; State v. Rod- man, 62 la. 456; Rice v. Com. 102 Pa. St. 408; Crescent City Ins.' Co. v. Ermaun, 36 La. Ann^ 841. 54. Tobin V. Shaw, 45 Me. 331, 71 Am. Dec. 547; Eldridge V. Hawley, 115 Mass. 410. 22 THE LAW OF EVIDENCE § 30. Character of homicide. — When the ques- tion is whether a particular death was suicidal or accidental a presumption exists, in the absence of evidence, that it was accidental. § 31. Attempt to bribe. — If one of the parties to a suit attempts to bribe a witness his act raises a presumption of fact that his case is unjust. § 32. Destroys ships papers. — If, in time of war, the officers of a neutral ship destroy her papers in anticipation of search a strong pre- sumption of fact arises that their purpose in do- ing so was to get rid of incriminating testimony. § 33. Sanity. — Ordinarily people are sane. Based upon this fact a person is presumed sane unless there is proof to the contrary.^' Even in a criminal case the presumption is sufficient to establish prima facie the defendant's sanity.^' It may, of course, be rebutted by evidence. The very important question then arises upon whom is the burden of proof in its primary and true sense? This question is discussed in the next chapter. When a person is proved to be insane he is presumed to continue insane until the contrary is shown.*'' § 34. Survivorship. — By the civil law if two or more persons' lose their lives in a common dis- aster a presumption. of survivorship arises based 55. Staples v. Wellington, 58 Me. 453. 56. State v. Pike, 49 N. H. 399/443, 6 Am. Rep. 533. 57. Thornton v. Appleton, 29 Me. 298. PRESUMPTIONS 23 Upon age, sex and health.^^ A person between fifteen and sixty years of age is presumed to have survived longer than one less than fifteen or more than sixty. A man is presumed to have survived longer than a woman; and a person in good health longer than a person in poor health. At common law, however, there is no presump- tion of law in such cases. The question of sur- vivorship depends upon the peculiar facts and circumstances of the case and the burden oi proving it rests upon the party who alleges it.^** § 35- Conflicting presumptions. — When two presumptions conflict the stronger one will, of course, prevail. Thus, the presumption of inno- cence, which is a very strong one,*"' will prevail over the presumption of continuance of life,®^ or the presumption of chastity of a woman, or the presumption of marriage arising from cohabita- tion and repute.®^ The relative weight of conflicting presump- tions is for the court to decide.. 58.- 1 Greenleaf Ev. sec. 29. 59. Wing V. Angrave, 8 H. L. Cas. 183; Newell v. Nichols, 75 N. Y. 78, 31 Am. Rep. 424; Will of Abram Ehle, 73 Wis. 445; Cowman v. Rogers, 73 Md. 403; Petition of Wilbor, 20 R. I. 176, 37 Atl. R. 634, 79 Am. St. Rep. 842, 60. Dunlop V. United States, 165 U. S. 486, 602. 61. Cartwright v. McGown, 121 111. 388, 2 Am. St. Rep. 105; Price V. Price, 124 N. Y. 589; Charles v. Charles, 41 Minn. 201; Dickerson v. Brown, 49 Miss. 357. 62. Clayton v. Wardell, 4 N. Y. 230. 24 THE LAW OF EVIDENCE CHAPTER III. Burden of Proof. § I. Definition. — It is important to observe at the outset that the term '.' burden of proof " is used in two distinct senses. In its primary sense it means the duty of establishing one's case. In its secondary sense it means the duty of going forward with evidence. This double sense in which the term is used has given rise to much confusion in the cases. ^ § 2. Shifting of the burden of proof. — In its primary^ sense the burden of proof never shifts.^ In its secondary sense, however, it may shift re- peatedly during the trial.* § 3. Upon whom it rests. — In its primary sense the burden of proof lies upon the party against whom the judgment of the court should be ren- dered if no evidence were introduced on either side.* In its secondary sense it lies, at any given time, upon the party against whom the judgment should be rendered if no more testimony were introduced. 1. Thayer's Preliminary Treatise on Ev. 3SS et seq.; Supreme Tent v. Stensland, 206 111. 124, 99 Am. St. Rep. 137. 2. Wilder .V. Cowles, 100 Mass. 487; Tennessee Coal, Iron & Ry. Co. V. Harnilton, 100 Alg. 2S2; Lafayette v. Wortman, 107 Ind. 404; Ingals v. Eaton, 25 Mich. 32; Heineman v. Heard, 62 N. Y. 448; Powers v. Russell, 13 Pick. (Mass.) 69, 76, 77. 3. Scott V. Wood, 81 Cal. 398, 22 Pac. R. 871. 4. Farmers' Loan & Trust Co. v. Siefke, 144 N. Y. 3S4, 39 N. E. R. 338. BURDEN OF PROOF 25 § 4. Form and nature of the pleadings. — The burden of proof in its primary sense usually de- pends upon the form and nature of tlie pleadings. As a general rule it rests upon the party who substantially-alleges the affirmatiye. It is to be observed, however, that an allegation may be affirmative in substance and efifect and also in a sense negative.^ § 5. Rule when particular facts are peculiarly within the knowledge of a party. — When facts material to the issue lie solely within the knowl- edge of one of the parties the burden is upon him to prove them. A common illustration of this rule is prosecution for selling intoxicating liquor or doing other acts without the license required by law. In Massachusetts this rule is statutory." § 6. Effect of presumptions. — Presumptions do not change the burden of proof in its primary sense. A disputable presumption of law, how- ever, being sufficient to establish a prima facie case upon the point involved, shifts the burden 5. Abrath v. Northeastern Ry. Co. 11 Q. B. D. 440, 4S7; Phipps V. Mahoo, 141 Mass.' 471, S N. E. R. 835; Star- rett V. Mullen, 148 Mass. 570, 20 N. E. R. 178, 2 L. R. A. 697; Ames v. Snider, 69 111. 376; Com. v. Locke, 114 Mass. 288, 294; Lenig v. Eisenhart, 127 Pa. 59, 17 Atl. 684; Colorado Coal & Iron Co. v. United States, 123 U. S. 307. 6. Com. V. Curran, 119 Mass. 206; Hepler v. State, 58 Wis. 46; State v. Nye, 32 Kan. 201; State v. Kuhuke, 26 Kan. 405; 'State v. Richison, 45 Mo. 575. 26 THE LAW OF EVIDENCE of proof in its secondary sense of proceeding with evidence.'^ § 7. Burden of proof in criminal cases. — When a person is on trial in a criminal case the burden is on the state to prove his guilt beyond a reason- able doubt. And, according to the English rule, when a criminal act is material to the issue in q ciz'il case it must be shown beyond a reasonable doubt. By the great weight of authority, how- ever, in this country it is sufficient in such a case to prove it by a preponderance of the evidence.® § 8. Insanity a defense to a criminal charge. — The two essential elements of a common-law crime are criminal intent and overt act. To establish ,the guilt of the accused both must be shown, and the burden of doing so is on the state. A person who is insane, owing to a diseased mind, is incapable of entertaining a criminal in- tent. . In pleading insanity the accused denies an essential element of the crime charged. His plea is purely a negative , one. In no sense is it affirm- ative. Hence, logically, the burden of proof, in its primary sense, is on the state. This view is sustained by many courts.^" 7. Abrath v. Northeastern Ry Gj., supra; Quock Ting v. United States, 140 U. S. 417. . d. Davis v. State, 54 Neb. 177, 74 N. W. R. 599: Com. v. Webster, S Cusouisiana, owing to constitu- tional or statutory provisions, issues of law as well as of fact, are, in criminal cases, decided by the jury. Preliminary issues of fact, such as competency of witnesses, relevancy of .testimony, etc., are issues for the court to decide.^ § 4. Confessions and dying declarations. — When a confession or dying declaration is ob- jected to on the ground that it lacks one or more of the essential elements- of admissibility the court may, in its discretion, hear testimony and 1. Com. V. Robinson, 146 Mass. 571, 581, 16 N,. E. R. 452; State v. Cole, 94 N. C. 958, 964; Nelson' v. Sun. Mut. Ins. Co., 71 N. Y. 453.; Dole v. Johnson, 50 N. H. 462, 459; Com. v. Lynes, 142 Mass. 577, 580, 8 N. E. R, 408, 56 Am. Rep. 709. LAW AND FACT 45 arguments on both sides ; and before doing so it may require the jury to withdraw.^ In case the confession or dying declaration is admitted by the court the jury may give it no weight if they see fit to do so, but they may not reject it as a matter of law. § 5. Construction and legal effect of a docu- ment. — The construction and legal efifeict of a! document are issues for the cou'rt to decide.^ § 6. Execution, existence, contents and mean- ing of a document. — These are issues for the jury to decide. § 7. Legal effect of an oral agreement. — When the facts are undisputed the legal effect of an oral agreement is an issue for the court to decide. But when the facts are disputed it is an issue for the jury to decide under proper instructions by the court.* § 8. Negligence the issue. — The question of 2. Murphy v. People, 63 N. Y. 590, 597; Ellis v. State, 65 Miss. 44, 3 So. R. 188, 7 Am. Rep. 634; Com. v. Culver, 126 Mass. 466. 3. Bartlett v. Smith, 11 Mees. & W. 483. In this case Lord Abinger says: "All questions respecting the ad- missibility of evidence are to be determined by the judge, who ought to receive that evidence and decide upon it without any reference to the jury." The trial court left it to the jury to say whether a certain bill of exchange was an inland bill or a foreign bill. See also, Gorton v. Hadsell, 9 Cush. (Mass.) 511. 4. Festerman v. Parker, 10 Ired. (N. C.) 474; Pendelton V. Jones, 82 N. C. 249; Neilson v. Harford, 8 Mees. & W. 806; Spragins v. White, 108 N. C. 449. 46 THE LAW OF EVIDENCE negligence is, as a general rule, a mixed issue of law and fact. Under proper instructions by the court it is for the jury to decide. But when the facts are undisputed and fair-minded men could draw but one inference from them the issue is for the court to decide.^ § g. Reasonableness the issue. — As a general rule, the issue of reasonableness, like the issue of negligence, is a mixed issue of law and fact; and imder proper instructions by the court it is an issue for the jury to decide. But when the evi- dence is either insufficient or conclusive the court may decide it as a matter of law.^ ' § lo. Whether certain goods are necessaries. — When the question is whether certain goods under the circumstances of the particular case constitute necessaries or not the issue is a mixed one of law and fact. The subject-matter in such case possesses certain attributes other than those possessed by it naturally and is within the definition of a rule of law. I"or this reason it is 5. Bridges v. Lon. Ry. Co., 7 H. L. 213; Jones v. East Ten. & Ry. Co., 128 U. S. 443; Terra Haute, Etc. Ry. Co. V. Voelker, 129 III. 540; B. & O. Ry. Co. v. Owlings, 65 Md. 502; Lavarenz v, C. R. I. & P. Ry. Co., 56 la, 689; Plummer v. East. Ry. Co., 73 Me. 591; Penn. Co. V. Frana, 112 111. 398; Del. Etc. Ry. Co. v. Converse, 139 U. S. 469; Phoenix Ins. Co. v. Doster, 106 U. S. 30; North Penn. Ry. Co. v. Com. Bank, 123 U. S. 727, 733; Stackus v. N. Y. Etc. Ry. Co., 79 N. Y. 464; Rodrian v. N. Y. Etc. Ry. Co., 125 N. Y. 528. 6. Panton v. Williams, 2 Q. B. D. 169; Stewart v. Sonne- born, 98 U. S. 187. LAW AND FACT 47 the duty of the court to instruct the jury as to , the legal definition of the term. It is then for the jury to decide the issue in the light of the court's instructions.'^ § II. Whether certain real estate constitutes a homestead. — The principles involved in this case are similar to those involved* in § lo. The issue is a inixed one of law and fact and is for the jury to decide under proper instructions by the xourt. § 12. Criminal intent the issue. — The question of criminal intent as an ingredient of crime is a mixed issue of law and fact. In so far as it is effected by rules of presumption and substantive law it is for the court to decide. In so far as it is a matter of fact the issue is- for the jury to de- cide. § 13. Miscellaneous examples of mixed issues. — The following cases are examples of mixed is- sues of law andfact : Whether a certain act per- i formed on Sunday was a work of charity or j necessity. Whether a certain homicide was com- 1 mitted in self-defense. Whether a certain in- strument is a deadly weapon. Whether a cer- tain article constitutes baggage. Whether a hus- band has abandoned his wife. In all such cases it is the duty of the court to instruct the jury as to the legal meaning of the 7. Ryder v. Wombwell, L. R. 4 Cxch. 32; Peters v. Flem- ing, 6 Mees. & W. 46; Brooker v. Scott, 11 Mees. & W. 67; Johnstone v. Marks, 19 Q. B. D. 509. 48 THE LAW OF EVIDENCE term and then for the jury to decide the issue in the Hght of the court's instructions. § 14. Function of court to withdraw the case from the jury. — Cases arise where the court may, in its discretion, withdraw them from, the jury; and others arise where the court is bound to do so. As stated "in "Hughes On Evidence," how- ever, "This function is one which should be ex- ercised only in very clear cases. It should never ■ be exercised when the evidence, if material, is conflicting ; nor when impartial mindfe might hon- estly and reasonably draw diflferent conclusions therefrom. If the facts are undisputed or ad- mitted, whether such facts constitute a legal cause of action, or a legal defense, is a question for the court to, decide. To justify a withdrawal of the case from the jury, on the request of one of the parties, the evidence of the opposite party must be assumed to be true and all legitimate inferences therefrom must be in his favor. A mere scintilla of evidence in support of any theory of the case is not of itself sufficient to pre- vent a withdrawal. If at the close of the plain- tiff's case there is no evidence at .all to proV^e a material fact essential to recovery, the court, on the request of the defendant, is bound to instruct the jury to find a verdict for the defendant. If, however, such request is not made until after the defendant has introduced evidence which tends to prove such material fact, the court may refuse to so instruct the jury. Where there is any material evidence tending to prove all the RELEVANCY OF TESTIMONY 49 material requisites to a recovery the trial judge is bound to submit the case to the jury without regard to what, at the time, he may think he would do on a motion for a new trial."^ § 15. How question of withdrawal is raised. — The question of -wfithdrawal of the case from the jury may be raised by a motion for a nonsuit, by a demurrer to the evidence or by a request that the court instruct the jury in favor of a certain party. 8. pp. 27, 28. CHAPTER VI. Demurrers to Evidence. § I. Definition. — A demurrer to evidence is a declaration by the demurrant that he refuses to proceed on the ground that the evidence of the demurree is insufficient to establish the issue. § 2. Joinder.- — A joinder in demurrer by the demurree is essential to a judgment on the de- murrer. When the evidence is definite and clear the court will compel the demuree to join in de- murrer. § 3. Effect of a demurrer to evidence. — A de- murrer to the evidence and a joinder by the de- murree takes the case from the jury for the court to decide upon the legal sufficiency of the evi- dence. The demurrer admits all the facts which the 50 THE LAW OF EVIDENCE evidence tends to prove and also all reasonable inferences therefrom.^ When the evidence is conflicting only that which is adverse to the demurrant is considered. When the burden of proof is on the demurrant he is not entitled to judgment on the demurrer even when the evidence demurred to is insuffi- cient. But when the burden is not on him and the evidence is sufficient to prove the issue judg- ment should be entered in his favor. At common law a judgment on the demurrer terminated the case. According to the modern practice, however, when the demurrer is over- ruled the case proceeds.^ § 4. Other analogous proceedings. — In mod- ern practice demurrers to evidence are rarely used. In some state's they are prohibited by stat- ute. More efficient analogous proceedings are available. These include a motion to nonsuit; a motion that the court instruct the jury that, ad- mitting that the plaintifiE's evidence is true it is insufficient to entitle him to recover; submitting the case to the jury on an agreed statement of facts ; a motion to set aside the verdict because contrary to the evidence.^ 1. Kansas City, etc., Ry. Co. v. Faster, 39 Kan. 329; Weber V. The kamsas City, etc., Co., 100 Mo. 194. 2. Trout V. Virginia, etc., Ry. Co. 23 Gratt. (Va.) 619. 3. Golden v. Knowles, 120 Mass. 336. See also, Colgrove v. The New York, etc., Ry. Co. 20 N. Y. 492. See also, Parke v. Ross, 11 How. (U.S.) 362; Pleasants v. Saut, 22 Wall. (U. S.) 116. PART II. Leading Principles and Rules of Exclusion, CHAPTER I. Relevancy of Testimony, § I Relevancy. Definition. Application. — Mr. Stephen says the term relevant "means that any two fa.cts to which it is applied are so re- lated to each other that, according to the com- mon course of events, one either taken by itself or in connection with other facts proves or ren- ders probable the past, present or future ex- istence or non-existence of the other."^ And Mr. Wharton defines relevance as "that which con- duces to the proof of a pertinent hypothesis."^ Testimony to be admissible must be relevant. This rule is universal.® Many logically relevant facts, however, are not legally relevant. To be admissible in evi- dence they must be legally relevant.* 1. Stephens Dig. Ev., art. 1, p. 4. 2. Wharton, Evid., sec. 20. 3. Best, Evid. (10th ed.) sec. 251. 4. State V. Lapage, 57 N. H. 245, 28 Am. Rep. 75. In this case Gushing, C. J., says: "Although undoubtedly the relevancy of testimony is originally a matter of logic and common-sense, still there are many in- stances in which the evidence of particular facts as bearing upon particular issues has been so often the, subject of discussion in courts of law, and so often 52 THE LAW OF EVIDENCE Testimony that is logically relevant may be excluded because' too cbrtjectura), or too remote., and for either of these reasons tends to unduly prejudice the jury; or because it teitds- to, com- plicate the issue and thereby tends to confuse the jury." The rules of evidence are, in a large measure, rules of exclusion. § 2. Facts legally relevant. — Facts which are essentially involved in a decision of the case are legally relevant. These constitute the facts in issue. Other facts which are logically relevant to the facts in issue and which, assuming them to be true, conclusively establish the existence or non- existence of a fact, or facts in issue, or of any fact or facts legally relevant thereto, are also legally relevant. Moreover, "The competency of a collateral fact to be used as the basis of legiti- mate argument is not to be determined by the conclusiveness of the inferences it may aflEord in ruled upon, that the united logic of a great many judges and lawyers may be said to furnish evidence of the sense common to a great many individuals, and thus to acquire the authority of law. It is for this reason that the subject of the relevancy of tes- timony has become to so great an extent, matter of precedent and authority, and we may with entire^ pro- priety speak of its legal relevancy." 5. Durkee v.- India Ins. Co., 159 Mass. 514; Zenia Bank v. Stewart, 114 U. S. 224; Kellog v. Thompson, 142 Mass. 76; Hamilton v. Frothingham, 59 Mich. 253; Ocke- shausen v. Durant, 141 Mass. 338. RELEVANCY OF TESTIMONY 53 reference to the litigated fact. It is enough if these may tend, even in a slight degree, to eluci- date the inquiry or 4o assist, though remotely, to a determination probably founded on truth."® § 3. Similar transactions with other parties. The acts and declarations of third parties, and also those of one of the parties to the action and a third party, although they may be, in a meas- ure, logically relevant, are, as a general rule, in- admissible. In general, this class of testimony, as said by Mr. Taylor, "it would be manifestly unjust to admit, since the conduct of one man under certain circumstances or toward certain individuals, varying as it will necessarily do ac- cording to the motives which influence him, the- qualities he possesses and his knowledge of the character of those with whom he is dealing, can never afford a safe criterion by which to judge of the behavior of another man simarily situated, or of the same man towards other persons."^ Thus, where- the issue was whether certain rent was payable quarterly or half-yearly, testimony as to the way other tenants paid their rent, al- though in a measure logically relevant, was held inadmissible.* § 4. Sirnilar acts injurious to others. — Testi- 6. Holmes, v. Goldsmith, 147 U. S. ISO, 164. See also. Interstate Commerce Com. v. Baird, 194 U. S. ISO, 164; Wood v. Finson, 91 Me. 280, 39 Atl. R. 1007. 7. 1 Taylor, Evid., sec. 317. See also, Jackson v. Smith. ,7 Cow. (N. Y.) 718. 8. Carter v. Pryke, 1 , Peake 95. 54 THE LAW OF EVIDENCE mony that similar acts caused injury to others, although logically relevant, is generally inad- missible both in civil and criminal cases. It "points a finger," but it is too conjectural. If admitted it might unduly prejudice the minds of the jury.^ § 5. Remedying defects after injury. — Testi- mony that the defendant remedied the defects which caused the injuries complained of, soon after the latter occurred, is inadmissible to prove that he was negligent.-'" § 6. Others injured by same cause. — Testi- mony that, others were similarly injured by the- same cause under similar circumstances is le- gally, as well as Ipgically, relevant. But testi- mony as to the particulars of the injuries to others is not legally relevant because it would complicate the rssue and tend to confuse the jury.^^ 9. Holcomb v. He-svson, 2 Camp. 391; Elizabeth Emer- son, v. Lo-svell Gas Co., 3 Allen (Mass.) 410; Petition of H. O. Thompson, Com., Etc., 127 N. Y. 463; Amos- keag Manuf. Co. v. Head, 59 N. H.'332. 10. The Columbia, Etc., Ry. Co. v. Ha-wthom, 144 U. S. 202; Morse v. Min. & St. L. Ry. Co., 30 Minn. 465; Hodges V. Percival, 132 111. 53; Shinners v. Prop, of ' L. & C, 154 Mass. 168; Lombar v. East Tawas, 86 Mich. 14; Mo. Pac. Ry. Co. v. Hennesey, 75 Tex. 155; Terre Haute & Ind. Ry. Co. v.' Clem, 123 Ind. 15; Ely V. St. Louis, Etc. Ry. Co., 11 Mo. 34. 11. District of Columbia v. Armes, 107 U. S. 519; Quinlan V. City of Utica, 11 Hun. (N. Y.) 217, 74 N. Y. 603; City of Chicago v. Po-wers, 42 111. 169; Augusta v. RELEVANCY OF TESTIMONY 55 § 7. Proof of other crimes. — When a person is charged with a certain crime testimony that he committed other crimes is generally inadmis- sible. There are, however, some exceptions to this rule. When the commission of other crimes constitutes a material link in the chain of cir- cumstances which constitute evidence of a mo- tive in doing the criminal act charged, or guilty knowledge as to this act, testimony that he com- mitted the other acts is admissible to prove such motive or guilty knowledge. This testimony of the commission by the accused of other crimes, for the purposes stated, is admissible where the crime charged is- false pretenses, ^^ receiving stolen goods,^* forgery,'-* uttering forged or counterfeit paper,^^ etc. To a limited extent the same principle has been applied in cases of em- bezzlement,' '^ arson,^'' conspiracy,^* and adult- ery.^" Hafers, 61 Ga. 48; City of Delphi, Lowery, 74 Ind. S20; Hill V. Port. & Roch. Ry. Co., SS Me. 438; Cal- kins V. City of Hartford, 33 Conn. 57; Kent v. Town of Lincoln, 32 Vt. 591. . 12. People V. Shulman, 80 N. Y. 373; Queen v. Francis, L. R. 2 C. C. ■R. 128; Mayer v. People, 80 N. Y. 364; Com. V. Eastman, 1 Cush. (Mass.) 189, 48 Am. Dec. 596 and note. 13. Kilrow V. .Com., 89 Pa. St. 480; State v. Ward, 49 Conn. 429; Copperman v. People, 56 N. Y. 591. 14. People V. McGlade, 139 Cal. 66,. 72 Pac. R. 600; Com. V. Bigelow, 8 Mete. (Masg.) 235. 15. Com. V. Bigelpwi supra; People v. Farrell, 30 Cal. 316. 16. Com. V. Tuckerman, 10 Gray (Mass.) 173; Rex v. Ellis, 6 Barn. & C. 145. 56 THE LAW -OF EVIDENCE Testimony of the commission of other crimes by the accused is admissible when the other crimes constitute integral parts' of the same transaction. Thus, this principle has been ap- plied in cases of abortion,^" larceny,^^ robbery,^^ burglary,^* fraudulent voting,^* g'ambling,^^ ex- tortion,^^ and keping a lottery.^^ § 8. Sales of similar land in vicinity.^ — When the issue is the value of a certain tract of land some courts hold that testimony of the price at which other similar land in the vicinity was re- 17. Com. V. Bradford, 126 Mass. 42; R. v. Long, 6 Car. & P. 179. 18. Packer v. United States, 106 Fed. R. 906; Com. v. Eastman, 1 Cush. (Mass.) 189, 48 Am. Dec. 596 and note. , 19. Com. V. Nichols, 114 Mass. 285, 19 Am. Rep. 346. 20. People v. Seaman, 107 Mich. 348, 65 N. W. R. 203, 61 Am. St. Rep. 326; Com. v, Corken, 136 Mass. 429. 21. People V. Fehrenbach, 102 Cal. 394, 36 Pac. R. 678; .State V. Savage, 36 Ore. 191, 60 Pac. R. 610; Housh V. People, 24 Colo. 262, SO Pac. R. 1036. 22. Com. V. Scott, 123 Mass. 222, 25 Am. Rep. 81; Hope V. People, 83 N. Y. 419, 38 Am. Rep. 460. 23. State v. Connell, 12 Nev. 337; Frazier v. State, 135 Ind. 38, 34 N. E. R. 817. 24. People v. Shea, 147 N. Y. 78, 41 N. E. R.- 508. 25. Toll V. State, 40 Fla. 169, 23 So. R. 993 ; Com. v. Feerry, 146 Mass. 209, 15 N. E. R. 484. 26. State v. Lewis, 96 la. 286, 65 N. W. R. 295; Glover v. People, 204 111. 170, 68 N. E. R. 464. 27. Miller v. Com., 13 Bush (Ky.) 737; Clark v. State, 47 N. J. L. 556, 4 Atl. R. 327. RELEVANCY OF TESTIMONY 57 cently sold is admissible.^^ Other courts hold j the contrary.^'' As such collateral matters com- plicate the case and tend to confuse the jury as well as unduly prejudice them, the latter view is the beter one, but not the weight of authority. Moreover, more reliable testimony is available, viz., expert opinion. § 9. Other acts or occurrences which refute the inference or contention of accident.^When an inference arises, or a party to the action con- tends, that the act or occurrence in issue was accidental and not 'intentional, the adverse party may refute this inference or contention by showing that the act or occurrence in issue formed part of a series of similar acts or occurrences in which the former party was concerned. As said by Mr. Stephen, "When there is a question whether an act was accidental or intentional, the fact that such act formed part of a series of similar .occur- rences, in each of which the person doing the act was concerned, is deemed to be relevant."^" Cases involving the application of this principle are prosecutions for keeping a bawdy-house; for 28. Packing Co. v. Chicago, 111 111. 6S1; Town of Chero- kee V. Land Co., 52 la. 279, 3 N. W. R. 42; Sawyer v. Boston, 144 Mass. 470, 11 N. E. R. 711; St. Louis; K. ~& N. W. Ry. Co. V. Clark, 121 Mo. 169, 25 S. W. R! 192; Armory v. Melrose, 162. Mass. 556, 39 N. E. R. 276; Washburn v. Ry. Co., 59 Wis. 364. 29. In re Thompson, 127. N. Y. 463, 28 N. E. R. 389; Ry. Co. V. Zeimer, 124 Pa. St. 414; Robinson v. Ry. Co., 175 N. Y. 219, 67 N. E. R. 431. 30. Stephen Dig. Ev., art. 12 and cases cited. 58 THE LAW OF EVIDENCE burning a building to recover the insurance money ;^^ for malicious shooting, etc.^^ § ID. Methods and appliances used by others. — In negligence cases testimony of methods and appliances used by others in similar cases is gen- erally inadmissible. There are, however, ex- ceptions to this rule. Thus, where the business carried on is of an exceptionally hazardous na- ture due care requires the use of the most ap- proved methods and appliances, and testimony on this point is legally relevant. § II. Preparation, motive, 'threats, etc. — Tes- timony which shows preparation, motive, op- portunity, threats, etc., is legally relevant.^* And testimony which shows impossibility of oppor- tunity or of ability to do the alleged act is also legally relevant. ^^ Thus, testimony is frequently introduced to prove an alibi. § 12. Relevancy of Demeanor. — When a party is accused of a tort or a crime and he manifests guilt by making false statements, attempting to escape, concealing property, etc., testimony of such acts is legally relevant.®" § 13. Accompanying statements. — Statements 31. Harwood v. People, 26 N. Y. 190, 84 Am. Dec. 175. 32. R. V. 'Gray, 4 Fost. & F. 1102. 33. R. V. Yoke, Russ. & R. Cr. C. 531. 34. Com. V. Goodwin, 14 Gray (Mass.) 55; Blake's v. Da- Cunha,, 126 N. Y. 293; Bruner v. Wade, 84 la. 698. 35. Moulton v. Aldrich, 28 Kan. 300. 36. Murray v. Chase, 134 Mass. 92; Lindsay v. People, 63 N. Y. 143. RELEVANCY OF TESTIMONY 59 by or to a party charged with doing an act, and which accompany and limit, characterize or ex- plain it, are legally relevant.^'' Such statements constitute part of the res gestae. . And state- ments made prior to the act- may be legally rele- vant. Thus, statements made half an hour be- fore the alleged act were held admissible on the ground that they constituted part of a continuous quarrel or altercation.^^ § 14. Financial standing of parties. — Where the plaintiff may be awarded exemplary dam- ages the financial standing of both the plaintiff and the defendant is, in some classes of cases, legally relevant. These include actions for seduction, criminal conversation,^^ malic- , ious prosecution,*'^ assault and battery,*^ slander and libel, *^ etc. § 15. Similar accidents under similar condi- tions. — As to the legal relevancy of testimony of 37. Ins. Co. V. Mosley, 8 Wall. (iJ. S.) 411; Lund v. Tyngsborough, 9 Cush. (Mass.) 42; Hutcheis v. Ry. Co., 128 la. 279, 103 N. W. R. 779 (In this case the plaintiff, just after she fell, made the statement "Yes, let dawn the step after I fall!") 38. Wood V. State; 92 Ind. 269. 39. Peters v. Lake, 66 111. 206, 16 Am. Rep. 593. 40. Winn v. Peckham, 42 Wis. 493; Whitefield v. West- brook, 40 Miss. 311.' 41. Jones v. Jones, 71 111. S62; Rowe v. Moses, 9 Rich (S. C.) 423, 67 Am. Dec. S60 and note; Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582. 42. Kidder v. Bacon,, 74 Vt. 263, 52 Atl. R. 322; Hayner V. Cowden, 27 Ohio St. 292, 22 Am. Rep. 303. 6o th:e law of evidence similar accidents under similar conditions the cases are in conflict. Some hold that such tes- timony is admissible.*^ Others hold the con- trary.** § 1 6. Testimony that many others escaped in- jury. — In actions for damages caused by alleged negligence in failing to keep buildings, grounds, walks, etc., in safe condition, testimony that many others passed thru or on them without be- ing injured is legally xelevant to show want of j negligence, provided the circumstances are co- i incident and sirhilar.*^ Otherwise stich testimony is inadmissible.*® § 17. Customs and usages of others. — Testi- mony'of the customs and usages of others, en- gaged in like enterprises, to show want of negli- gence, is admissible in some cases and not in others. Where the question of negligence in- volved in the case depends upon the degree of care which other persons engaged in similar bus- 43. District of Columbia v. Armes, 107 U. S. 519; Brady V. Manhattan Ry. Co., 127 N. Y. 46; Illinois Cent. Ry. Co. V. Treat, 179 111. 576, 54 N. E. R. 290. 44. Schloff V. Ry. Co., 100 Ala. 377, 14 So. R. 105; Hud- son V. Chicago & N. W. Ry. Co., 59 la. 581, 44 Am. Rep. 692. 45. Crafter v. Metropolitan Ry. Co. L. R. 1 C. P. 300; House V. Metcalf, 27 Conn. 631; Calkins v. Hartford, 33 Conn. 57. / 46. Temiperance Hall Assoc, v. Giles, 33 N. J. L. 260; Collins V. Inhab. of Dor., 6 Cush. (Mass.) 396; Hub- bard V. A. K. Ry. Co., 39 Me. 506; Kidder v. Inhab. of Dunstable, 11 Gray (Mass.) 342. RELEVANCY OF TESTIMONY 6l inessf- in the vicinity were in the habit of bestow- ing on property similarly situated the testimony is admissible.*^ On the other hand, where the defendants conduct does not so depend such testimony is inadmissible. As said by Strong, J., "The issue to be determined was, whether the defendant had been guilty of negligence ; that is, whether it had failed to exercise that cau- tion and diligence which the circumstances de- manded, and, which prudent men ordinarily ex- ercise. Hence the standard by which its con- duct Avas to be measured was not the conduct of other railroad companies in the vicinity; cer- tainly not their usual conduct."*" This class of testimony has been held inadmissible to show Usages of other railroad companies, in the vi- cinity, as regards the blowing of whistles,*® keep- ing their turntables locked,^" etc. § i8. Habits of animals. — When the habits or traits of an animal are material, testimony of specific instances of the manifestation of them, 47. Cass V. Bos. & Low. Ry. Co., 14 Allen (Mass.) 448. (Tub of sugar disappeared from defendant's ware- house). 48. Grand' Trunk Ry. Co. v. Richardson et al., 91 U. S. 4S4 (In this case testimony that other railroad com- panies did not employ watchmen to guard their bridges in the vicinity was held inadmissible). 49. Hill V. Portland Ry. Co., SS Me. 438, 92 Am. Dec. 601. 50. Koons V. St. Louis Ry. Co., 65 Mo. 592; G., C. & St. F. Ry. Co. V. Evansich, 61 Tex. 3. 62 THE LAW OF EVIDENCE l)Oth before and after the particular instance in- volved, is admissible. ^^ § 19. Habitual negligence. Imperfect engines. Fires. — When the plaintiff sues to recover dam- ages for the loss of property which he alleges was destroyed by fire owing to the defendant's negligence in carelessly and unskillfuUy operat- ing an imperfect locomotive engine, and there is no evidence of any suspicion, testimony that safer and better appliances are used by other companies is legally relevant.^" Owing to the hazardous nature of the business an essential of due care is the use of the most approved methods and appliances and a general lack of such shows habitual negligence. § 20. Company discharges servant. — Where the .defendant is sued for damages caused by al- leged negligence, testimony that the company discharged the servant who is alleged to have been responsible for the injury is not admissi- ble.*^ To hold otherwise would tend to discour- age the adoption of additiona.1 safeguards by im- proving the quality and raising the standard of such service. Moreover, such testimony has a 51. Todd V. Rowley, 8 Allen (Mass.) 51 (horse had habit of shying). 52. Sheldon v. Hudson R. Ry. Co., 14 N. Y. 218, 67 Am. Dec-. 15S and note; Thatcher v. Maine Cent. Ry. Co., 85 Me. 502; Henderson v.' Phil. & R. Ry. Co.,, 144 Pa. St. 461. 53. Hewitt V. Taunton Street Ry. Co., 167 Mass. 484. RELEVANCY OF TESTIMONY 63 strong tendency to unduly prejudice the jury against the defendant. § 21. Owner's knowledge of animal's vicious propensities.' — Where injuries are caused by a vicious animal, testimony that the animal had at- tacked other persons upon former occasions and that knowledge of these attacks was brought home to the owner is legally relevant. But tes- timony of the particulars of the former attacks is inadmissible.^* § 22. Good faith of defendant. — Testimony that shows that the defendant acted in good faith may be legally relevant. Thus, in a ma- licious prosecution suit he may show that in mak- ing complaint against the present plaintiff he did so in good faith based upon representations made to him which he believed to be true.'* And in a homicide case he may show that he acted in reasonable self defense.*® Again, in an action to recover damages for fraudulently misrepre- senting the solvency of a person testimony that the defendant acted in, good faith is legally rele- vant.*^ 54. Roscoe's Nisi Prius 739. 55. Bacon v. Towne, 4 Cush. (Mass.) 217. 56. Campbell v. People, 16 111. 17, 61 Am. Dec. 49 and full note. 57. Skeeji v. Bumpstead, 1 Hurl. & C. 358. 64 THE LAW OF EVIDENCE CHAPTER II. • Character. § I. Definition. — The term "character" has been defined as "The combination of properties, quaHties or pecuHarities wliich distinguishes one person or thing, or one group of persons or things, from otliers ; specifically, the- sum of in- herited and acquired ethical traits which give to a person his moral individuality."^ § 2. Character versus reputation. — The terms character and reputation are frequently used in- terchangeably. The former, however, comprises the actual moral qualities or traits, whereas the latter consists of the current, popular impression that exists in regard to them. § 3. General rule in civil cases. — As a general rule testimony is not admissible in civil cases to prove the character of a party to the litigation.^ There are, however, exceptions to this rule. '% 4. Reason for the rule. — The chief reason for this rule is that, as regards the merits of the case, 1. Century Diet. 2. Souk V. Bruce, 67 Me. 584; Vawter v. Hultz, 112 Mo. 633, 639, 20 S. W. R. '689; Dain v. Wycoff, 18 N. Y. 45, 72 Am. Dec. 493; Lord v. Mobill, 113 Ala. 360, 21 So. R. 366; Vance v. Richardson, 110 Cal. 414, 42 Pacific R. 909; Am. Fire Ins. Co. v. Hazen, 110 Pa. St. 530, 1 Atl. R. 60S; Lamagdeline v. Tremblay, 162 Mass. 339, 39 N. E. 38; So. Kan. Ry. Co. v. Robins, 43 Kan. 145, 23 Pac. R. 113; Dudley v. McCluer, 65 Mo. 241, 27 i^n. Rep. 273; Wolf v. Troxell 94 Mich. 573, 54 N. W. R. 383; McDonald v. Savoy, 110 Mass. 49. CHARACTER 65 the inferences that may be drawn from this class of testimony are too vague aftd unreliable and for this reason might unduly prejudice the minds of the ju/y.^ § 5. Limitation of the rule. — ^The rule of evi- dence which excludes character-testimony in civil cases is confined to instances in which character constitutes a basis for the inference of conduct. Where a particular trait of character, either of a party to the Htigation or of a third party, is materially relevant to a fact in issue, or to a material evidentiary fact, apart from any inference as to conduct, character-testimony is admissible.* § 6. Illustrations of exceptions to the general rule. — The principle stated in the latter part of § 5 applies to actions for seduction;' breach of 3. Houshtaling v. Kelderhouse, 2 Barb: (N. Y.) 149 (In this case Parker, J., says "But in a civil suit, where the personal rights of opposite parties are to be weighed in a nicely adjusted balance, no proof except that relating to the facts in controversy should be admitted to turn the scale."). r 4. Falkner v. Behr, 7S Ga. 671; Ficken v. Jones, 28 Cal. 618; Baumier v. Antian, 79 Mich. 509, 44 N. W. R. 939; Mullins v. Cottrell, 41 Miss. 291. 5. Dudley v. McCluer, 6S Mo. 241, 27 Am. Rep. 273; Burnett v. Simpkins, 24 III. 264; Goldsmith v. Picard, 27 Ala. 142; White v. Murtland, 71 111. 250. 66 THE LAW OF EVIDENCE promise of marriage ;^ indecent assault -^ rape ;" criminal conversation (under certain condi- tions) ;" slander ;^° libel ;^^ malicious prosecu- tion;^^ keeping an incompetent servant/* etc. § 7. Action for criminal conversation. — In an action fpr damages for criminal conversation the chastity of the wife does not constitute part of the plaintiff's case.^* Nor does adulterous con- duct on the part of the plaintiff husband consti- tute a bar to his right of action.^^ But if the wife's chastity is attacked, either directly or on cross-examination, character-testimony is then 6. McCarty v. Coffin, 157 Mass. 478, 32 N. E. R. 649; Von Storch v. Griffin, 77 Pa. St. S04; Hughes v. Nolte, 7 Ind. App. 526, 34 N. E. R. 649. See also 5 Cyc. 1013, 1015. 7. Bingham v. Bernard, 36 Minn. 114, 30 N. W. R. 404.' 8. Young V. Johnson, 123 N. Y. 226, 25 N. E. R. 363. 9. Pratt V. Andrews, 4 N. Y. 493; Rea v. Tucker, 51 111. 110. 10. Hosely v. Brooks, 20 111. US; Downey v. Dillon, 52 Ind. 442; Burnett v. Simpkins, 24 111. 265; Larned v. Buffinton, 3 Mass. 546; Adams v. Lawson, 17 Grat. (Va.) 250. See also Fahey v. Crotty, 63 Mich. 383. 11. Adams v. Smith, 58 111. 417; Proctor v. Houghtaling, 37 Mich. 41; Scott v. Sampson, 8 Q. B. D. 491. 12. Roserikrans v. Barker, 115 111. 331, 3 N. E. R. 93; Mclntire v. Levering, 148 Mass. 546; Blizzard v. Hays, 46 Ind. 166. 13. Frazier v. Penn. Ry. Co., 38 Pa. St. 104, 80 Am. Dec. 467; East Line, etc., Ry. Co. v. Scott, 68 Tex. 694, 5 S. W. R. 501. 14. Pratt V. Andrews, 4 N. Y. 493. 15. Rea v. Tucker, 51 111. 110. CHARACTER 6/ admissible to sustain it>® Moreover, this class of testimony, as to both the husband and the wife, is admissible as to the question of mitigation of the damages.-^'' § 8. In mitigation of damages.^ — The admissi- bility of character-testimony may depend upon the purpose for which it is offered. In some cases it is admissible in mitigation of damages where it would be inadmissible in bar of the action.^® § 9. Bastardy cases. — In this class of cases the character of the complaining witness is not in issue; and the testimony of her general bad repu- tation for chastity is inadmissible. Moreover, testimony that she had intercourse with men other than the accused, or that since the birth of her child she has lived the life of a common prostitute, is also inadmissible.^^ § 10. Actions for malicious prosecution. — As to the admissibility of character-testimony in this class of cases the decisions are somewhat in conflict. Some courts hold that, as regards the 16. Pratt V. Andrews, supra. 17. Rea v. Tucker, supra. 18. O'Brien v. Frazier, 47 N. J. L. 349, 1 Atl. R. 465; 54 Am. Rep. 170; Rosenikrans v. Barker, supra (malicious prosecution). 19. Duffies V. The State, 7 Wis. '567; Rawles v. State, 56 Ind. 433; Olson v. Peterson, 33 Neb. 358; Com. v Moore, 3 Pick. (Mass.) 194; The State v. Read, 45 la. 469; Com. v. Churchill, 11 Mete. (Mass.) 538 (over- ruling Com. V. Murphy, 14 Mass. 387);Bookhout v. The State, 66 Wis. 415, 28 N. W. R. 179. 68 THE LAW OF EVIDENCE questions of probable cause and malice, as well as the question of mitigation of damages, the defendant may introduce testimony of the gen- eral bad reputation of the plaintiff.^" Other courts, on the other hand, hold that when this class of testimony is- not offered in mitigation of damages, but as circumstantial evidence of actual character, with the view of making it the basis of an inference as to the plaintiff's conduct, it is not legally relevant.^^ Upon principle, the latter view is correct. This view has been also appljed to actions of libel and slander. ^^ § II. Testimony of financial and social stand- ing. — As a general rule, testimony of the finan- cial or social standing of a party to the litigation is inadmissible.^* There are, however, excep- tions to this rule. § 12. Defendant's financial and social stand- ing.— In cases involving exemplary or punitive damages testimony of the financial and social standing of the defendant is admissible. Thus, 20. Bacon v. Towne, 4 Cush. (Mass.) 217; Gregory v. Chambers, 78 Mo. 294; Barron v. Mason, 31 Vt. 189. 21. Harding v. Brooks, S Pick. (Mass.) 244; Mathews v. Himtly, 9 N. H. 146; Cornwall v. Richardson, R. & M. 305, 27 Rev. Rep. .753, 21 E. C. L. 758. 22. Holley v. Burgess, 9 Ala. 728 (slander). See also Libel and Slander in Cyc. 23. Johnson v. Smith, 64 Me. 555. 24. Brown v. Klock, 117 N. Y. 340, 22 N. E. R. 944; Harris v. Tyson, 24 Pa. St. 347, 64 Am. Dec. 661. See also note 67 Am. Dec. 562-568. CHARACTER 69 in actions for malicious prosecution;^^ slander and libel ;^® seduction ;^'^ assault and battery ;^^ negligence f^ criminal conversation,^" and tres- pass,®^ the circumstances may justify ajivarding exemplary damages; and where they do testi- mony of the defendant's financial and social standing is admissible. Moreover, in some cases testimony of the defendant's financial and social standing is admissible where only compensatory damages are asked. Thus, where the injury is to the character, or an insult to, the person, com- pensatory damages may be increased by proof of the wealth of the defendant.*^ This principle has been applied in actions for slander and 25. Winn v. Peckham, 42 Wis. 493; Whitfield v. West- brook, 40 Miss. 311. 26. Larned v. Buffington, 3 Mass. 546, 3 Am. Dec. 185; Kidder v. Bacon, 74 Vt. 263, 52 Atl. R. 322; Buckley V. Knapp, 48 Mo. 152, Haytier v. Cowden, 27 Ohio St. 292, 22 Am. Rep. 303. 27. Lee v. Hammond, 114 Wis. 550; Rea v. Tucker, 51 111. 110, 99 Am. Dec. 539 and note; Clem v. Holmes, 33 Gratt. (Va.) 722, 36 Am. Rep. 793. 28. Jones v. Jones, 71 111. 562; Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582; Harris v. Marco, 16 S. C. 575. 29. McBride v. McLaughlin, 5 Watts (Pa.) 375. 30. Peters v. Lake, 66 111. 206, 16 Am. Rep. 593. See also note 99 Am. Deo. 539. 31. Meibus v. Dodge, 38 Wis. 300, 20 Am. Rep. 6. 32. Johnson v. Smith, 64 Me. 555. 70 THE LAW PF EVIDENCE libel ;^^ seduction;** breach of promise to mar- ry,''^ etc. § 13. Plaintiff's financial and social standing. — In cases in which exemplary damages are al- lowable testimony of the financial and social standing of the plaintiff is admissible.^* But in cases in which this feature is not involved this class of testimony is inadmissible.*'^ § 14. Character of defendant in a criminal case. — Where a person is on trial for a criminal of- fense it is not competent for the prosecution to attack the character of the defendant before he introduces evidence of his good character.*^ § 15. Same. Flight from state. In trouble 33. Taylor v. Pullen, 152 Mo. 434, S3 S. W. R. 1086; Botsford V. Chase, 108 Mich. 432, 66 N. W. R. 325; Humphries v. Parker, 52 Me. 507. contra, Enos v. Enos, 135 N. Y. 609, 32 N. E. R. 123. See note, 67 Am. Dec. 565. 34. Wilson v. Shepler, 86 Ind. 275; Lavery v. Crooke, 52 Wis. 612, 38 Am. Rep. 768. 35. Bennett v. Beam, 42 Mich. 346, 36 Am. Rep. 442 and note; Royal v. Smith, 40 la. 615; Allen v. Baker, 86 N. C. 91, 41 Am. Rep. 444. See also full note 63 Am. Dec. 545-547. 26. Clements v. Mahoney, 55 Mo. 352 (slander); Bump V. Betts, 23 Wend. (N. Y.) 85 (malicious prosecu- tion); Eltringham v. Earkard, &? Miss. 488, 7 So. R. 346, 19 Am. St. Rep. 319 (assault and battery); Sloan V. Edwards, 61 Md. 69 (assault and battery). 37. Barbour v. Horn, 48 Ala. 566; Penn. Ry. Co. v. Roy, 102 U. S. 451; Mo. Pac. Ry. Co. y. Lyde, 57 Tex. 505; Pitts. Ry. Co. V. Powers, 74 III. 343. 38. State v. Nelson, 98 Mo. 414, 11 S. W. R. 997; Mann V. State, 22 Fla. 600; State v. Thurtell, 29 Kan. 148, CHARACTER 7 1 before. — In a murder trial the prosecution may ask the defendant whether, after the killing com- plained of, he did not flee from the state. More- over, where' the-defendant is asked if he had been in trouble before, and he voluntarily answers- the questions, the testimony is competent. ^^ § 1 6. When testimony as to violent character of deceased inadmissible. — Where the accused is on trial for murder or manslaughter, and the evi- dence shows that the altercation which resulted in the homicide was provoked by the defendant, and that he could have retreated with safety, if at any time he was in imminent peril, testimony as to the violent and blood-thirsty character of the deceased is inadmissible.*" § 17. Testimony of good character of defend- ant. — Testimony of the good character of the defendant is always admissible ; and it is not error for the trial court to refuse to instruct the jury that testimony of his good character is in- admissible unless his character has been as- sailed.*^ And where a witness testifies that the defendant is a quiet man and good natured, as far as he knows, it is not error for the court to exclude, against objection, the question, " state what his disposition is when crossed or mis- used."*2 39. Baker v. Com., 13 Ky. L. Rep. 571, 17 S. W. R. 625. 40. Jones v. State, 120 Ala. 303, 25 So. R. 204. 41. State V. Donohoo, 22 W. Va. 761. 42. Thoams v. People, 67 N. Y. 218. 72 THE LAW OF EVIDENCE § 1 8. General character for chastity where woman is on trial for murder. — When a woman is on trial for the murder of a man her general character for chastity is no more necessarily in- volved in the question of her guilt or innocence than her general character in any other respect; and the prosecution may not introduce testi- mony upon this point unless the defendant her- self initiate the inquiry. The fact that her de- fense is rendered more formidable, when consid- ered in connection with the good character which the law presumes her to possess, does not of itself open the door for the prosecution to prove that her general character for chastity is bad.** § 19. The limitation of character-evidence. — Where a defendant in a criminal case testifies in his own behalf, but introduces no testimony as to his general character, and the prosecution in- troduces evidence as to his bad character, the evidence introduced by the prosecution in such -case may be considered only as affecting the credibility of the defendant as a witness, and not as a circumstance in determining the question of his guilt or innocence.** § 20. Chastity of prosecutrix in criminal ac- tion for seduction. — In an action fpr seduction chastity of the prosecutrix is an essential ingred- ient of the offense. In the absence of evidence to the contrary it is presumed, and the burden of 43. People v. Fair, 43 Cal. 137. 44. Adams v. Pepple, 9 Hun (N. Y.) .89. CHARACTER 73 overcoming this presumption is on the defend- ant. If, however, evidence is introduced which tends to prove the unchastity of the, prosecutrix reasonable doubt of her chastity is as fatal to a conviction as is the existence of such doubt in reference to any other material fact.*' A prose- cution for adultery, however, is not like a case of seduction- in which the previous chastity of the woman is necessarily in issue. In the former case the chastity of the woman is not an essential ingredient of the ofifense.*® § 21. Mode of proving character.— As a gen- eral rule proof of character is limited to proof of general reputation.*^ There are, however, excep- tions to this rule. In some cases testimony is admissible to prove particular facts.** Moreover, where a party to the litigation seeks to impeach the credibility of a witness personal opinion of the impeaching witness is legally relevant. § 22. Mode of eliciting the personal opinion of an impeaching witness. — The personal opinion of an impeaching witness must be based upon the general reputation for truth and veracity of the witness whose credibihty is sought to be im- 45. State v. Traylor, 121 N. C. 674, 28 S. E. R. 493; Cal- hoon V. Com., 23 Ky. L. Rep. 1188, 64 S. W. R. 965. 46. People v. Knapp, 42 Mich. 267, 3 N. W. R. 927, 36 Am. Rep. 438; Smith v. State, 118 Ala. 117, 24 So. R. 55. 47. R. V. Rowton, Leigh & Cave 520; Com. v. Hardy, 2 Mass. 31Z. 48. White v. Murtland, 71 111. 250; Berry v. Watkins, 7 Car. & P. 308; Love v. Masoner, 6 Baxt. (Tenn.) 24, 32 Am. Rep. 522. 74 THE LAW OF EVIDENCE peaclTed. In laying the foundation for eliciting the personal opinion of an impeaching witness he is first asked if he knows the general reputa- tion for truth and veracity of the witness whose credibility is sought to be impeached, in the neighborhood in which the latter resides. If the answer is in the affirmative he is then asked to state what that general reputation is. If the answer is that it is bad the witness may then be asked if, based upon that reputation, he would ' believe him on oath. § 23. Scope of character testimony. — Char- acter-testimony should be restricted to the trait of character involved in the issue. Some courts, however, apply a more liberal rule. Thus, in seeking to impeach the credibility of a witness the trait of character involved is untruthfulness ; and the testimony should be restricted to this trait. Some courts, however, apply a more lib- eral rule and admit testimony of the bad repu- tation of the person generally. § 24. Trait of being a peaceable and law- abiding citizen. — In some cases testimony of the defendant's general reputation for being a peaceable and law-abiding citizen is admissible. This principle has been applied in actions for felonious homicide ;*^ rape f assault ;®^ carry- ing concealed weapons f^ train-wrecking,^^ etc. 49. Bayse v. State, 45 Neb. 261, 63 N. W. R. 811; Carr V. State, 135 Ind. 1, 34 N. E. R. 533, 41 Am. St. Rep. 408, 20 L. R. A. 863; Jones v. State, 120 Ala. 303, 25 So. R. 204. CHARACTER 75 § 25. Trait of being a violent person. — When the accused is on trial for felonious homicide and he pleads self-defense and introduces evi- dence to prove it, testimony of the general repu- tation of the deceased for being a violent person is admissible.^* This principal is also applicable to actions for assaults in general. § 26. Trait of chastity. — In actions of seduc- tion ;5^ rape ;^® breach of promise to marry ;^'^ 50. Lincecum v. State, 29 Tex. App. 328, IS S. W. R. 818, 25 Am. St. Rep. 727; State v. Sprague, 64 N. J. L. 419, 45 Atl. R. 788. 51. Com. V. O'Brien, 119 Mass. 342, 20 Am. Rep. 325; People V. Gordon, 103 Cal. 568, 37 Pac. R. 534; State V. Schleagel, 50 Kan. 325, 31 Pac. R. IIOS. 52. Lann v. State, 25 Tex. App. 498, 8 S. W. R. 650, 8 Am. St. Rep. 445. 53. State V. Douglass, 44 Kan. 618, 26 Pac. R. 476. 54. Fahey v. Crotty, 63 Mich. 382; Givens v. Bradley, 3 Bibb (Ky.) 192, 6 Am. Dec. 646; Davidson v. State, 135 Ind. 254, 34 N. E. R. 972; Williams v. State, 74 Ala. 18; Thomas v. People, 67 N. Y. 218; Powell v. State, 101, Ga. 9, 29 S. E. R. 309, 65 Am. St. Rep. 277. 55. People v. Knapp, 42 Mich. 267, 3 N. W. R. 927, 36 ' Ain. Rep. 438; People v. Wade, 118 Cal. 672, SO Pac R. 841; White v. Murtland, 71 111. 250; Love v Masoner, 6 Baxt. (Tenn.) 24, 32 Am. Rep. 522. 56. Young V. Johnson, 123 N. Y. 226, 25 N. E. R. 363 State V. Knapj)p, 45 N. H. 148. 57. McCarty v. ' Coffin, 157 Mass. 478, 32 N. E. R. 649 Von Storch v. Griffin, 11 Pa. St. 504; State v. Schlea- gel, 50 Kan. 325, 31 Pac. R. 1105. 76 THE LAW OF EVIDENCE indecent assault ;^^ adultery/" etc., the trait of chastity may constitute an ingredient of the act charged, in which case testimony of the general reputation of the party for chastity or unchastity is admissible. The same principle is applicable where the crime charged is carnal knowledge of a girl under sixteen "theretofore chaste."®" § 27. Trait of honesty. — In actions for la:r- ceny,®^ receiving stolen goods,®^ malicious mis- chief,®^ fraud,®* etc., the trait of lionesty is rele- vant to the issue and testimony of the person's general reputation for honesty is admissible. § 28. Trait of kindliness. — This trait has been recognized as materially relevant to the issue in actions for infanticide®^ and seduction;®® and testimony of general reputation, has been held admissible to show it. § 29. Trait of veracity. — As heretofore stated, the credibility of a witness may be impeached by showing that his general reputation for truth 58. Bingham v. Bernard, 36 Minn. 114, 30 N. W. R. 404; R. V. Rowton, Leigh & Cave, 520. 59. Cauley v. State, 92 Ala. 71, 9 So. R. 456; United States V. Bredemeyer, 6 Utah, 143, 22 Pac. R. 110. 60. People v. Mills, 94 Mich. 630, 54 N. W. R. 488. 61. State V. Bloom, 68 Ind. 54, 34 Ato. Rep. 247; Long V. State, 11 Fla. 295. 62. Bernecker v. State, 40 Neb. 810, 59 N. W. R. 372; Com. V. Gazzolo, 123 Mass. 220, 25 Am. Rep. 79. 63. Browder v. State, 30 Tex. App. 614, 18 S. W. R. 197. 64. Hanney v. Com. 116 Pa. St. 322, 9 Atl. R. 339. 65. State V. Cunningham, 111 la. 233, 82 N. W. R. 775. 66. People v. Mills, 94 Mich. 630, 54 N. W. R. 488. CHARACTER JJ and veracity is ba-d; and character-testimony is admissible to rebut it. It is also held that the trait of veracity is materially relevant in actions for perjury,*^ and malicious mischief;®^ and that character-t&stimony is admissible on this issue in these cases. It has been rejected, however, in actions for larceny;*^ assault with intent to kill,''^'' and felonious homicide.''^ § 30. Trait of exercising due care. — In select- ing servants a master must exercise reasonable care. This duty he owes not only to the public but also to fellow servants. If an injury occurs owing to failure on the part of the master to perform this duty he is liable. And to show knowledge on his part of the incompetency of the servant who causes the injury testimony of the general reputation of the latter for being incompetent is legally relevant.''^ On the other hand, the general reputation of the injured person for being a careful, prudent and sober man is generally not legally relevant. ^^ Many courts hold, however, that where there are no eye-witnesses to the accident, and the 67. Eddington v. United States, 164 U. S. 361, 17 S. Ct. 72, 41 L. ed. 467. 68. Browder v. State, 30 Tex. App. 614, 18 S. W. R. 1S*7. 69. Hays v. State, 110 Ala. 60, 20 So. R. 322. 70. Morgan v. State, 88 Ala. 223, 6 So. R. 761. 71. Morgan v. State, supra. See also. People v. Cowgill, 93 Cal. 596, 29 Pac. R. 228. 72. Monahan v. Worcester, ISO Mass. 439. 73. C. R. I. & P. Ry. Co. v. Clark, 108 111. 113; St. Ry. Co. V. Robbins, 43 Kan. 145. 78 THE LAW OF EVIDENCE injured person is killed, this class of testimony is legally relevant.^* §31. Relevancy of negative facts to prove good character. — Testimony of negative facts may be legally relevant to prove good character. Thus a person who has lived a considerable time in the same neighborhood where the "ac- cused lived may testify that he has never heard any evil reports of him ;''^ or ever heard his character discussed.'^*' § 32. Relevancy of particular facts. — Testi- mony of particular facts to prove the character >of a party is generally inadmissible. '''' Such tes- timony is considered too conjectural and there- fore liable to tmduly prejudice the minds of the jury. Moreover, it would introduce- collateral issues, thereby complicating the case and tend- ing to confuse the minds of the jury. This re- strictive rule is applicable both to civil and crim- 74. Cases cited in note 73. 75. Powell V. State, 101 Ga. 9, 29 S. W. R. 309, 65 Am. St. :Rep. 277; Hussey v. State, 87 Ala. 121, 6 So. R. 420; Matusevitz v. Hughes, 26 Mont. 212, 66 Pac. 939, 68 Pac. R. 467; State v. Grate, 68 Mo. 22. 76. State V. Lee, 22 Minn. 407, 21 Am. Rep. 769; State V. Grate, supra; Hussy v. State, supra. 77. People V. Gordon, 103 Gal. 568, 37 Pac. R. 534; Hirsch- man v. People, 101 111. 568; White v. Com. 80 Ky. 480, 4 Ky. L. Rep. 373; Nelson v. State, 32 Fla. 244, 13 So. R. 361; State v. Welsof, 117 Mo. 570; Wolf v. Perryman, 82 Tex. 112, 17 S. W. R. 772; McCarty v. Coffin, 157 Mass. 478, 32 N. E. R. 807; Stalcup v. State, 146 Ind. 270, 45 N. E.. R. 334. CHARACTER 79 inal cases and when the testimony is offered by either of the parties to the litigation.''^ More- over, it is appHcable where the purpose is to show either good^" or bad^° character. And furthermore, it is applicable not only to a party to the litigation but also to a witness or a third party. *^ In a few classes of cases, however, character- testimony of particular facts is admissible. Thus, in actions for rape, seduction, criminal conversation, etc., this class of testimony has been held admissible. ^^ In an action for rape an integral part of the crime charged is want of consent on the part of the prosecutrix; and to rebut this element testimony of prior acts of intercourse with the defendant is admissible. Moreover, some courts admit testimony of acts of immoral intercourse between her and men other than the defendant. And in an action for 78. McCarty v. Coffin, supra; State v. Lapage, 57 N. H. •245, 24 Am. Rep. 69. 79. Com. V. Mullen, 150 Mass. 394, 23 N. E. R. 51; Howard V. State, 37 Tex. Cr. Rep. 494, 36 S. W. R. 475, 66 Am. St. Rep. 812; Jones v. Duchow, 87 Cal. 109, 23 Pac. R. 256; State v. Ferguson, 71 Conn. 227, 41 Atl. R. 769. 80. State v. Bysong, 112 la. 419, 84 N. W. R. 505; Murphy V. State, 108 Ala. 10, 18 So. R. 557; Campbell v. State, 38 Ark. 498; Cheney v. State, 7 Ohio 222; State v. Sterrett, 71 la. 386, 32 N. W. R. 387. 81. Campbell v. State, supra; Nixon v. McKinney, 105 N; C. 23, 11 S. E. R. 154; Frazier v. Penn. Ry. Co., 38 Pa. St. 104, 80 Am. Dec. 467. 82. See cases cited in foot-note 48. 8o THE LAW OF EVIDENCE seduction, the chastity of the complaining wit- ness is an integral part of the offense charged; and some courts hold that testimony of specific acts of intercourse between her and the defend- ant, or between her and men other than the defendant, prior to the offense charged, is legally relevant.®^ Testimony of specific acts is also admissible to prove a person's mental state.** Again, testimony of specific acts is held admis- sible to show the disposition or character of an animal.*^ Thus, such testimony is admissible to show that a certain horse is viscious,** gentle,*^ safe,** kind,*" etc. § 33. Character testimony in actions of fraud. — Mr. Greenleaf says "And generally in actions of tort, wherever the defendant is charged with fraud from mere circutiistances, evidence of his general good character is admissible to repel it."®" The contrary, however, is supported by the great weight of authority,®^ and is also in 83. See cases cited in foot-note 48. 84. Redick v. State, 25 F!a. 112, S So. R. 704. 85. Lynch v. Moore, 154 Mass. 335, 28 N. E. R. 277; Noble V. St. Jo., etc. Ry. Co., 98 Mich. 249, 57 N. W. R. 126. 86. Lyndh v. Moore, supra; Whittier v. Franklin, 46 N. H. 23, 88 Am. Dec. 185. 87. Lebanon, etc.. Turnpike Co. v. Hearn, 87 Tenn. 191, 1 S. W. R. 510. 88. Todd V. Rowley, 8 Allen (Mass.) 51. 89. Sydleman v. Beckith, 43 Conn. 9. 90. 2 Greenl. Evid., sec. S4„ 91. Schmidt v. N. Y. Union Mut. F. Ins., 1 Gray (Mass.) 529; Powers v. Armstrong, 62 Ark. 267, 35' S. W. R. CHARACTER 8 1 harmony with the bettei^ view.®^ This class of testimony has been rejected in actions for fraud- ulantly burning property;®* fraudulently over- valuing property insured;®* fraudulently con- veying property;®^ fraudulently appropriating property;®^ maliciously burning property ;®''^ making false and fraudulent representations as to the solvency of another person,®* etc. Testi- mony of the good character of the defendant, in a civil action charging him w^ith fraud, may, in a measure, be logically relevant, but it is too conjecttiral to go to a jury. Moreover, it com- plicates the case and tends to divert the minds of the jury from the real issue to be decided. As' said in a South Carolina case, "If in every case v\'here an act of dishonesty is imputed the impi^tation may be met with such evidence, then there are few cases into which such evidence might not be introduced; trials would be in- supportably tedious and the result of a trial would as often depend upon the popularity of 228; Dudley v. MaCluer, 65 Mo. 241, 27 Am. Rep. 273; Gebhart v. Burkett, 57 Ind. 378, 26 Am. St. Rep. 61. 92. Rosenagel v. Handl, 157 Pa. St. 107, 25 Atl. R. 42. 93. Hunkers v. Ins. Co., 30 Ore. 211, 46 Pac. R. 850. 94. Fowler v. Aetna Ins. Co., 6 Cow. (N. Y.) 673, 16 Am. Dec. 460. 95. Van Sickle v. Shenk, 150 Ind. 413, 50 N. E. R. 381. 96. Smets v. Plunket, 1 Strob. (S. C.) 372. 97. Barton v. Thompson, 56 la. 571, 41 Am. Rep. 119. 98. Gough V. St.. John, 16 Wend. (N. Y.) 646. 82 THE LAW OF EVIDENCE a party as upon the merits of his case."®® This class of testimony has also been rejected in actions on contract ;^*"' for malicious mis- chief;'- for criminal conversation;^ assault and battery,^ and for false arrest and imprison- ment.* In some states, however, including Indiana,^ Tennessee,® Minnesota'' and New Hampshire,^ the contrary view has been sus- tained. But upon principle, as well as authority, testimony of the good character of the defend- ant in a civil action for fraud, either ex delicto or ex contractu, is inadmissible. § 34. Weight of character testimony. — The weight of this class of testimony depends upon the circumstances of the particular case. Gener- ally speaking, its probative value is not as great in civil cases as in criminal cases.® Formerly, testimony of the good character of the accused was admissible only in capital cases; but now it- 99. Smets v. Plufiket, supra. 100. Munroe v. Godkin, 111 Mich. 183; 69 N. W. R. 244. 1. Thayer v. Boyle, 30 Me. 475. 2. Pratt V. Andrews, 4, N. Y. 493. 3. Markey v. Angell, 22 R. I. 343, 47 Atl. R. 882. 4. Geary v. Stevenson, 169 Mass. 23, 47 N. E. R. 381. 5. Hilker v. Hilker, 153 Ind. 425, 55 N. E. R. 811. 6. Cent. Bank v. First Nat. Bank, 108 Tenn. 374, ' 68 S. W. R. 497. 7. Hein v. Holdridge, 78 Minn. 468, 81 N. W. R. 522. 8. Warner v. Warner, 69 N. H. 137, 44 Atl. R. 908. 9. State V. Daley, 53 Vt. 442, 38 Am. Rep. 694; Fry v. • State, 96 Tenn. 467, 35, S. W. R. 883; Com. v. Nagle, 157 Mass. 554 ,32 N. E. R. 861. CHARACTER 83 is admissible in all criminal cases. It consti- tutes circumstantial evidence, and ordinarily is not considered strong evidence. On the other hand it may be sufficient to generate a doubt in the minds of the jury and turn the scale ^ven when the crime charged is an attrocious one and the evidence tends very strongly to establish the guilt of the accused." But the court may not charge the jury that proof of the good character of the accused raises a reasonable doubt of his guilt ;^^ nor that such proof is conclusive in a doubtful case.^^ Cooley, C. J., says, " Good char- acter may not only raise a doubt of guilt which would not otherwise exist, but it may bring con- viction of innocence. In every criminal trial it is a fact which the defendant iS at liberty to put in evidence ; and, being in, the jury have a right to give such weight as thev think it entitled to."" 10. Remsen v. People, 43 N. Y. 6; Seymour v. State, 102 Ga. 803, 30 S. E. R. 263; State v. Pipes, 65 Kan. S43, 70 Pac. R. 363; State v. Anslinger, 171 Mo. 600, 71 S. W. R. 1041; Hanney v. Com., 116 Pa. St. 322, 9 Atl. R. 339; Armor v. State, 63 Ala. 173; Edgington V. United States, 164 U. S. 361, 17 S. Ct. 72, 41 L. ed. 467. . 11. Guzinski v. People, 77 111. App. 275; Mitchell v. State, 43 Fla. 188 , 30 So. R. 803. 12. Shields v. State, 149 Ind. 395, 49 N. E. R. 351. 13. People V. Garbutt, 17 Mich. 84 THE LAW OF EVIDENCE CHAPTER III. Confessions. § I. Definition. — A confession is an admission by a person that he is guilty of participating in the commission of a particular crime. § 2. Classification. — Confessions are classified as voluntary and involuntary. They are also classified as judicial and extra-judicial. § 3. Authority for admissibility. — Confessions v\^ere admissible at common law. Their use was first regulated by statute in the reign of Philip and Mary. At present statutes regulate their vise to a considerable extent. § 4. Voluntary confessions. — A confession to be admissible in evidence must be voluntary . The element of spontaneity is of vital impor- tance.^ — A voluntary confession, in its technical sense, is one that is made without inducement by a person in authority, of hope of reward or fear of punishment as regards the alleged crime ; or one that is made without such inducement, 1. Clayton v. State, 31 Tex. Cr. Rep. 489; Hopt v. People, 110 U. S. 574; Wilson v. United States, 162 U. S. 613; Robinson v. People, 159 111. 115, 42 N. E. R. 375; Redd V. State, 69 Ala. 255, 259; State v. Carrick,-16 Nev. 120, 130; People v. Chaplean, 121 N. Y. 266, 24 N. E. R. 469. 2. People V. McMahon, IS N. Y. 384. CONFESSIONS 85 caused by threatened mob violence,* a threat of corporal violence by a person in authority, or actual corporal violence by a private person. § 5. A person in authority. — To render a con- fession involuntary it must be induced by a per- son who is endov^red with authority to make the promise or threat. All persons connected with the prosecution are considered qualified. They include the prosecuting attorney, the officer who has custody of the "accused and the magistrate connected with the prosecution.* In England the victim of the crime, if living, is qualified. This rule obtains in many of the state courts. It does not obtain, however, in the federal courts. The fact that a person occupies the relation of parent or master of the accused does not qualify him as a person in authority.® Nor does the 'fact ■that he occupies a clerical relation towards him. Thus the chaplain of the jail in which the accused is incarcerated is not a person in authority. . When the accused has reasonable grounds to believe that the promise or threat is made by a person in authority, and makes the confession in 3. Whitley v. State, 78 Miss. 2SS, 28 So. R. 852-; Bram V. United States, 168 U. S. S32, 1'8 Sup. Ct. 183, 42 L. ed. S68. 4. State V. Hedgepeth, 125 Mo. 14; Bartley v. People, 1S6 111. 264; State v. Harrison, 115 N.. C. 706; Fussel V. State, 93 Ga. 450. 5. Com. V. Howe, 2 Allen (Mass.) 153; Shifftell's Case, 14 Gratt.": (Va.) 652. 86 THE LAW OF EVIDENCE consequence of such belief, the confession is inadmissible.* § 6. Application of promise or threat. — To render a confession involuntary it must be in- duced by the promise or threat/ Although the promise or threat is made by a person in author- ity if the accused subsequently makes the con- fession wholly independent of it the confesssion is admissible. In such case, however, it must clearly appear that the promise or threat exer- cised no influence on the mind of the accused.^ When the confession is made prior to the promise or threat, or after the promise or threat has been withdrawn, it is, of course, admissible. When a confession is induced by a threat or promise, subsequent similar confessions, made even to different persons, are presumed inadmis- sible. Bvit when no confession is made to the party who offers the inducement and the ac- cused subsequently makes a confession to a dif- ferent party it is presumed admissible. When the accused inadvertently makes a con- fession based upon a mistake of fact the con- fession is admissible. 6. Com. V. Knapp, 9 Pick. (Mass.) 496; United States V. Knott, 1 McLean 499. 7. Com. V. Cuffee, 108 Mass. 305; Pierce v. United States, 160 U. S. 3SS, 16 Sup. Ct. 321, 40 L. Ed. 454. 8. Reg. V. Clewes, 4 Car. & P. 221; Com. v. Myers, 160 Mass. 530, 36 N. E. R. 481; State v. Drake, 82 N. C. 592, 596. CONFESSIONS 87 g 7. Artifice or deception used. — The fact that artifice or deception' is used in procuring a con- fession does not render it inadmissible.® § 8. Promise of pardon, etc. — A confession procured by a promise of pardon, release from arrest, lighter punishment, better jail treatment, cessation of prosecution, etc., is inadmissible. § 9. Advised to confess, tell the truth, etc.^ • Some courts hold that this kind of an induce- ment renders the confession inadmissible,^" while other courts hold the contrary.^' § 10. Accused assured that his statement will be used. — The fact that the accused is assured that what he says will be used for him, or against him, does not render his confession inadmissible: § II. Moral or religious exhortations. — The fact that a confession is induced by moral or re- ligious exhortations does not render it inadmis- sible.12 § 12. Conitessions under oath. — The fact that a confession was made under oath at a former 9. People V. McCallam, 103 N. Y. 587, 598, 9 N. E. R. 502; State v. Mitchell,- 61 N. C. 447; Burton v. State, 107 Ala. 108, 18 So. R. 284; State v. Walker, 98 Mo. 95, 113, 9 S. W. R. 646 and 11 S. W. R. 1133; Rex. v. Derrington, 2 Car. & P. 418. lO.Xom. V. Nott, 135 Mass. 269. See also 1 Greenl. Evid., sec. 219; 2 East P. C. 659. 11. State V. Meekins, 41 La. Ann. 543; State v. White, 17 Kan. 487; State v. Kornstett, 62 Kan. 221, 22 Pac. R. 805. 12. Com. V. Drake, 15 Mass. 161; Aaron v. State, 37 Ala 106; State v. Potter, 18 Conn. 166. 88 THE LAW OF EVIDENCE trial or proceeding does not render it inadmissi- ble.^^ But if the accused was compelled to tes- tify at the former trial, in violation of his consti- tutional right to refuse to do so, the confession is inadmissible. And if a witness, who is sum- moned to testify at the preliminary hearing of the accused after his arrest, is not apprised of his constitutional right to refuse to -testify to anything which may tend to criminate him, a confession of his own guilt is inadmissible in a subsequent prosecution against him.^* But the mere fact that he fails to exercise his privilege to refuse to answer when the answer tends to criminate him does not render the confession involuntary. § 13. Accused under arrest. — The fact that the accused is under arrest at the time the con- fession is made does not render it inadmissible.^^ § 14. Improper inducement terminated after 13. State V. Campbell, 73 Kan. 688, 85 Pac. R. 784, 9 L. R. A. (N. S.) 533; Dickerson v. State, 48 Wis. 288, 292, 4 N. W. R. 321; Hill v. State, 64 Miss. 431, 440, 1 So. R. 494; Cotn. v. Reynolds, 122 Mass. 454, 458; People V. Chaplean, 121 N. Y. 266, 276, 277, 24 N. E. R. 469; State V. Witham, 72 Me. 531, 533, 534; State v. Sortor, 52 Kan. 531, 34 Pac. R. 1036; State v. Finch, 71 Kan. 793, 81 Pac. R. 494. 14. People V. Mondon, 103 N. Y. 211, 8 N. E. R. 496, 57 Am. Rep. 709. 15. State V. CliflEord, 86 la. 553; State v'. Oilman, 51 Me. 209; Rizzolo v. Com., 126 Pa. St. 124; People v. Cha- com, 102 N. Y. 669; Jackson v. State, 59 Ala. 249; State V. George, 15 La. Ann. 145. CONFESSIONS 89 confession. — A confession induced by an im- proper promise or threat which is subsequently- made nugatory may be inadmissible. Thus a promise by the chief of police that the accused will be released if he will confess and disclose his accomplice, who is the principal offender, renders the confession inadmissible although the prosecuting attorney informs him, after he makes the confession, that the promise of the chief of police was unauthorized and is re- pudiated. § 15. Conduct of accused induced by promise or threat. — The rule which excludes involuntary confessions is not applicable to conduct as dis- tinguished from words. Thus, testimony of in- criminating conduct of the accused induced by a promise or threat is admissible.^® Such testi- mony is original circumstantial evidence. The incriminating conduct is not technically a confession. Moreover, it is prejudicial error for the court to charge the jury that it is.-^'' 16. State V. Edwards, 13 S. C. 30; State v. Hill, 134 Mo. 663, 36 S. W. R. 223; Kelly v. People, 55 N. Y. 365, 14 Am. Rep. 342. 17. State V. Edwards, supra (In this case the trial court charged the jury "That, if a party hears a criminal , charge against himself, made in his presence, and says nothing, it is an admission on his part,' and in the eye of the law the party accepts that charge as his con- fession." Held error. "The eflfect of this charge was to give the silence of the parties the legal force and effect of confession of guilt. It must, in this respect, be distinguished from the proposition that the con- 90 THE LAW OF EVIDENCE Furthermore, circumstances may render testi- mony of the conduct inadmissible. Thus, where a witness makes incriminating statements against the accused in a former proceeding the latter's silence may not be used against him.'^® § 1 6. Criminating statements of facts. — The rule which excludes involuntary confessions is not applicable to criminating statements of facts which fall short of being confessions of guilt. Such statements are merely admissions, and their legal relevancy is governed by the rules ap- plicable to admissions. § 17. Facts discovered as a result of an invol- untary confession. — Facts discovered as a result of an involuntary confession, and which are ma- terial to the issue, may be shown. -^^ Moreover, the courts of many states hold that the con- fession is thereby rendered admissible in so far duct of the parties under accusation of crime may be given to the jury as circumstances to be weighed in connection with the' question of guilt or innocence."). 18. Brogles v. State, 47 Ind. 251. See also Slatterly v. People, 76 111. 217 (In this case the accused had prom- ised that if the interview with his father-in-law were accorded him he would keep his temper and be on his good behavior. At the interview his father-in- law made incriminating statements against him and he kept silent. The court held that testimony of his silence was inadmissible.). 19. Lowe v. State, 88 Ala. 8. 7 So. R. 97; Duffy v. People, 26 N, Y. 588, 590; Gates v. People, 14 111. 433, 437. R. V. Gould, 9 Car. & P. 364. CONFESSIONS 9 1 as it is confirmed by the discovered facts.^" The weight of authority, however, is to the contrary. § i8. Whole confession introduced. '— When the prosecution introduces part of a confession the accused is entitled to have the rest of it in- troduced although that part is favorable to him.^^ § 19. Substance i^ladmissible. — When the wit- ness is unable to give the exact words of the confession he may give the substance of it. And when he hears, or remembers, only part of the confession he may testify as to that part.^^ § 20. Other parties implicated. — When the confession implicates other persons as well as the accused the whole confession is admissible but is binding only on the accused. § 21. Accused intoxicated. — The fact that the accused is intoxicated when he makes the con- fession does not render it inadmissible unless the intoxication renders him wholly irresponsi- ble mentally.^* § 22. Accused asleep. — Words spoken by the agcused while asleep are inadmissible. His con- dition at that time renders him mentally irre- sponsible.^* 20. Lowe V. State, 88 Ala. 8. 21. McAdory v. State, 62 Ala. 154, 160; People v. Gela- bert, 39 Cal. 663; Berry v. Com., 10 Bush (Ky.) IS. 22. Com. V. Pitsinger, 110 Mass. 101; Levison v. State, 54 Ala. 101. 23. Com. V. Howe, 9 Gray (Mass.) 110; Eskridge v. State, 25 Ala. 30. 24. People v. Robinson, 19 Cal. 40. 92 THE LAW OF EVIDENCE § 23. Only external influences considered. — In determining whether a confession is vohtn- tary or involuntary, only external influences are given consideration. Thus when the accused offers to turn state's evide-nce, his ofifer accepted, a promise of protection given him, and he makes a confession which implicates himself and his accomplices but subsequently refuses to testify against them, his confession is admissible against him. As said by Putnam, J., in the cele- brated Knapp case, "He had solicited and ob- tained the protection of the government, and was at liberty to accept it on those terms, or to stand upon his defense. We cannot perceive how the prisoner, thus situated, could have any motive falsely to accuse himself, although he might have a motive to continue his false accu- sation against his accomplices. And besides, if any such motive could be supposed to oper- ate, it was a new motive, and not arising from external influence. And it is no objection to the admission of a confession that it was made- from interested motives, and with, the hope.pf favor, if the motive is not excited by external influence. "^^ § 24. Confessions of other crimes. — It has 25. Com. V. Knapp, 10 Pick. (Mass.) 477, 20 Am. Dec. 534 (In this case two brothers were convicted of murder and executed. It came to light later that had the brother who confessed testified against his brother as he agreed to do, and had all the facts been brought out, both would have been acquitted.) CONFESSIONS 93 been held that confessions of other crimes by the accused are inadmissible to impeach his char- acter or credibility.^* § 25. Confession may be oral or in writing. — A confession may be oral as well as in writing. If it is inwriting it must be signed by the party who makes it, or be acknowledged by him. In case it is both oral and in writing the best evi- dence rule is- applicable. The oral confession in such case is secondary evidence^ and inadmissible unless a proper foundation is laid for its intro- duction. This is done by showing that the writ- ten- confession is lost, that a reasonable search was made for it and that the search was unsuc- cessful; or, that the written confession was in- advertently destroyed, or is in the hands of the adverse party who refuses to produce it. § 26. Promise by private detective. — Hope of reward or fear of punishment inspired by. a private detective does not render a confession involuntar3^^^ § 27. Promise communicated to accused indi- rectly. — It is not essential that the person in authority communicate directly his promise to the accused. It is sufficient if the intermediary is a person vdio would naturally be supposed to do so.^^ § 28. Witness speaks a different language. — If the witness speaks a different language from 26. State v. Symonds, Sf Me. 148. 27. Early v. Com. 86 Va. 921. 28. Rex V. Harding, 1 Ann., M. & O. 94 THE LAW OF EVIDENCE that Spoken by the accused 'the burden is on the prosecutor to show that the language used by the accused was understood by both.^" § 29. Accused compelled to do incriminating acts. — While the accused may refuse to make incriminating statements against himself, some courts hold that he may be compelled to do acts which constitute circumstantial evidence of his guilt and that testimony of such acts is admis- sible.^" Other courts, however, hold the con- trary. ^^ § 30. Presumption and burden of proof. — In the absence of any suspicious circumstance a confession is presumed voluntary. ^^ 29. People v. Minisci, 46 Hun. (N. Y. 682; Berry v. Com. - 10 Bush (Ky.) IS; People v. Gillebert, 39 Col. 663. 30. State v. Garrett, 71 N. C. 85, 17 Am. Rep. 1 '(In this case the accused girl, charged with the murder of an- other girl, claimed that deceased was accidentally burned, and that she, the "accused, got her hand burned in trying to subdue the flames. The coroner compell- ed her to unwrap her hand and show it to a physician, and it was -found that her hand had not been burned at all. Testimony of this fact was held admissible) ; State V, Graham, 74 N. C. 646, 21 Am. Rep. 493 (In this case the accused, who was charged with stealing corn from a field was compelled by the officer who arrested him to go to the field and put his foot in the tracks there. Testimony of this fact and also of the fact that his foot exactly fitted the tracks was held admissible as circumstantial evidence.) 31. People V. McCoy, 4S How. Prac. (N. Y.) 216; United State V. Wong Quong Wong, 94 Fed. R. 832. See also 13 Har. Law Rev. 302. 32. Hopt V. Utah, 110 U. S. 594: State v. Davis, 34 La. Ann. 35. Burden of proof in true sense not effected.) CONFESSIONS . 95 By the weight of authority the burden is on the 'prosecution to show that it is voluntary.^* This' is the English rule.^* Some courts, how- ever, hold that the burden is on the defendant to show that it is involuntary.*^ This view, however, is not correct upon principle. § 31. Confessions admissible only against par- ties who make them. — Very generally, confes- sions may be used only against the parties who make them.*® This rule is applicable even in the case of joint crimes and where the defendants are jointly tried. In criminal conspiracy cases, however, a confession made by one of the joint conspirators during the pendency of the con- spiracy and in furtherance of it is binding on all the conspirators. §32. Confession by third party. — A confession by a third party that he alone is guilty of the crime for which the acccused is on trial is ina,d- missible in favor of the accused. Moreover, if the confession of the third party is also a dying declaration it is not admissible as such in favor of the accused.*^ § 33. Function's of court and jury.^^It is the function of the court to decide the question of admissibility of the confession, and the function 33. Roesel v. State, 62 N. J. L. 216. 34. R; v. Thompson, 2 Q. B. D. 12. 35. Gjm. V. Knapp., supra. 36. Robinson v. Robinson, 1 Sw. & Tr. 362; State v. Rine- hart, 106 N. C. 787. i7. Mitchell V. Com. 12 Ky. L. Rep. 458, 14 S. W. R. 489. 96 THE LAW OF EVIDENCE of the jury to decide its weight in case it is ad- mitted. The preliminary examination, in' de- termining the question of admissibility of the confession, should be conducted in the absence of the jury.^* The attorney for the defendant is entitled to examine the witness who is called to testify to the confession in regard to matters which pertain to its admissibility.^® This exam- ination should precede his examination in chief. § 34. Weight accorded confessions. — Upon this point the authorities are in conflict'. Ac- cording to Mr. , Foster*" and Sir William Black- stone*^ confessions are the weakest and most suspicious of all testimony. According to Chief Baron Eyre*^ they are deserving of the highest credit. As a rule, more credit is given to writ- ten confessions than to oral ones. It may be said, however, that a confession, oral or writ- ten, voluntarily and deliberately made by a per- son worthy of credit, and satisfactorily proved, is, as a rule, entitled to much weight. 38. Harter v. State, 95 Mo. 199. 39. State v. Drake, 82 N. C. 592. 40. Foster, High Treason, chap. 3, sec. 8. 41. 4 Blk. Com. 357. 42. 1 Leach 263. HEARSAY TESTIMONY 97 CHAPTER. IV. Hearsay Testimony. § I. Definition. — Hearsay testimony is testi- mony which depends solely for its truth or falsity in the first instance upon the statement of some person other than the witness, and has, in and of itself, no evidentiary forced § 2. Application of the rule against hearsay. — As a general rule, hearsay testimony is not ad- missible. This rule, however, has several im- portant exceptions which are discussed in sub- sequent chapters. It is applicable to both oral and written statements. It is conlined, however, to testimonial assertions. § 3. Reasons for excluding hearsay testimony. — There are several reasons for excluding hear- say testimony, the chief of which are the fol- lowing: (i) the original staternent is not made under oath; (2) no opportunity is afiforded the adverse party to cross-examine the original party who makes the statement; and (3) no opportunity is given the jury to observe his de- meanor when making it. § 4. Apparent exceptions to the rule against hearsay. — There are several classes of state- ments that are characterized as apparent ex- ceptions to the rule against hearsay. Very gen- erally, however, they constitute original evi- dence and the rule against hearsay does not ap- 1. iHughes on Evidence, p. 51. 98 THE LAW OF EVIDENCE ply to them. The next three sections pertain to this class of testimony. " § 5. The making of the statement a material fact. — When a main fact in issue, or a material evidentiary fact, is inhat was said, and not its truth or falsity, testimony of what was said is original evidence and not hearsay. In such case the statement' is not used testimonially. Thus in an action for slander a main fact in issue is usually the making of the alleged statement; and testimony of this fact, by a party who heard the statement, is original evidence.^ Again, when the intent or motive of a person is a mater- ial' evidentiary fact, testimony of statements by him indicating his intent or motive is original circumstantial evidence. Thus in a homicide case where a main fact in issue is whether the deceased was killed by the accused or committed suicide, testimony of statements by the deceased, made shortly before his death, that he intended to commit suicide, is original circumstantial evi- dence. Some courts hold, however, that such statements, to be admissible in evidence, must constitute part of the res gestae.^ The true rule, however, is that such statements are legally relevant if the intention concerning which they are made is a material evidentiary faet.* 2. Bacon v. Towne, 58 Mass. 217; Gallaway v. Burr, 32 Mich. 331; Wicker v. Hotchkiss, 62 111. 107, 14 Am. Rep. 75. 3. Siebert at al. v. The People, 143 111. 371. 4. Com. V. TreWhen, 157 Mass. 180. HEARSAY TESTIMONY 99 § 6. Market values. — Statements as to the market values of personal property constitute another apparent exception to the rule against hearsay.^ The market value of goods, as defined by the Supreme Court of the United States, is "the price at which they are fully offered in the market to all the world;, such prices as dealers in the goods are willing to receive and pur- chasers are made to pay."® Statements of the market values of personal . property, made thru a medium which the people generally rely upon, are usually deemed legally relevant. Thus mar- ket reports contained in periodicals which pub- lish regularly current prices are usually consid- ered legally relevant. As regards the legal rele- vancy of market reports contained in newspa- pers the decisions are not harmonious. As a general rule, however, when satisfactory proof is given of the mode of acquiring information upon which the reports are based the reports are admissible. But mere quotations from other newspapers, or reports based upon information furnished by parties who have not the means of procuring it, are not admissible. ''^ § 7. General reputation. — General reputation is also treated as an apparent exception to the rule against hearsay. But, as stated in § 2, Chapter II. Part I. general reputation is a fact and not hearsay. 5. Nash V. 'Classon, 163 III. 409. 6. Clignot's Champaigne, 3 Wall. (U. S.) 12S. 7. Whelan v. Lynch, 60 N. Y. 469, 473; Norfolk & W. Ry. Co. V. Reeves, 97 Va. 284, 33 S. E. R. 606. lOO THE LAW OF EVIDENCE CHAPTER V. Real Exceptions to the Rule Against, Hearsay. § I. Origin of the hearsay rule. — The' rule against hearsay had its origin in the develop- ment of the modern jury, system. Several of the so-called exceptions to the rule against hearsay existed as independent rules long before the ' rule itself came into being. Among these are dying declarations, shop-book entries, entries made in the regular course of business and ancient documents. § 2. Importance of this field. — What are char- acterized as real exceptions to the rule against hearsay occupy a large and important field in the law of evidence. They include statements made under oath in prior proceedings, dying declarations, declarations relating to pedigree, declarations relating to matters of public or gen- eral interest, public documents, ancient docu- ments, declarations against interest by persons since deceased, shop-book entries, entries made in the regular course of business, declarations relating to the mental or physical condition of the declarant and declarations relating to, or forming part of, the res gestae. These various classes of real exception to the rule against hear- say are next discussed in the order given, a chap- ter being devoted to each exception. STATEMENTS UNDER OAtP \^\ lOI > CHAPTER VlA \^ .A Statements Made Under Oath in Prior Pro- ceedings. § I. Statements under oath. — Within certain limitations, statements made under oath in prior actions or proceedings are admissible. These comprise testimony given at a former trial and depositions. § 2. Testimony given at former trials. — Under the following conditions testimony given under oath at a former trial is admissible. The wit- ness who gave it must be dead, or mentally in- competent-, or physically incapable of being pres- ent, or kept away by the adverse party, or (in civil cases) without the jurisdiction of the court, in which case it must appear that a reasonable effort has been made, without success, to pro- duce him. It is also essential that the party against whom the testimony was given at the former trial had the right and the opportunity to cross-exatmine the witness ; that the questions in issue at the former trial were substantially- the same as those in i^sue at the present trial, and relate to substantially the same points in issue at both trials; that the two trials (in civil cases) be be- tween the same parties or their representatives I02 THE LAW OF EVIDENCE in interest, or (in criminal cases) be against the same party and relate to the same crime. •'■ § 3. Mode of proving testimony given at for- mer trial. — At common law the notes of the court stenographer are not admissible. They may be used, however, to refresh memory. In many states, however, the notes themselves, when duly authenticated, are made admissible either by statute or rules of court; and in such cases they constitute the best evidence.^ If the testimony is not written down, or the stenographer's notes are inadmissible, any per- son who heard and remembers the testimony, and is a competent witness, may testify to it.^ And in sdch case it is sufficient, as a general rule, both in civil a.nd criminal cases, to give the sub- stance of the testimony.* In a few jurisdictions, however, including New York and Massachu- setts, the courts hold that it is essential to give at least the substance of the language of the tes- timony. § 4. Depositions. — Depositions are usually treated as constituting an exception to the rule against hearsay. Strictly speaking, however, 1. Wright V. Doe de Tathani, 1 Adol. & Ell. 3, 19; Mor- gan V. NichoU, L. R. 2 C. P. 117; Yale v. Comstock, 112 Mass. 267; United States v. Macomb, S McLean (U. S. C. C.) 286. 2. Jackson v. State, 81 Wis. 127. 3. Clark v. Vorce, IS Wend. (N. Y.) 193. 4. Brown v. Com. 73 Pa. St. 321; Jackson v. Powers, 40 Vt. 611; Gildersleeve v. Caraway, 10 Ala. 260. DYING DECLARATIONS IO3 they do not. The mode of taking them and their admissibility in evidence depend upon statutory provisions. They are made under oath and an opportunity is afforded the adverse party to cross-examine the deponents. And while it is true that the jury are not afforded an oppor- tunity to observe the demeanor of the deponents while making the depositions the latter are taken pursuant to the pisovisions of the statutes for the very purpose of reading them to the jury. § 5. Extension of the rule. — Some courts hold that the rule which allows testimony given un- der oath in a former proceeding is applicable to preliminary and arbitration proceedings.^ In no case, however, is it applied where the adverse party has not the right and opportunity of cross- examination: Nor is it applied where the issues and parties are substantially different. Thus testimony given under oath at a coroner's in- quest is not admissible in a civil action for dam- ages based upon the same facts. In such case both the issues and parties are different.^ S. United States v. Macomb, supra. CHAPTER. VII. Dying Declarations. § I. In general.-^-Dying declarations are hear- say. Within certain restrictions, however, they I04 THE LAW OF EVIDENCE are admissible in evidence and constitute a real exception to the rule against hearsay. § 2. Scope of their admissibility .^Formerly, dying declarations were held admissible both in civil and criminal cases.^ Today, however, both in England and in this country, except in Kan- sas,^ they are admissible only in criminal cases. Moreover, in the absence of statutes, the crime charged must be either murder or manslaugh- ter.® § 3. Grounds of admissibility. — The two grounds assigned for admitting dying declara- tions in evidence are (i) the solemnity of the occasion and (2) the necessity of the case. The former is considered the equivalent of an oath. The latter is justified on the ground that other- wise manslayers would escape justice for lack of evidence. § 4. Statem^ent by Lord Chief Baron Eyre, — In commenting on the admissibility of dying declarations. Lord Chief Baron Eyre said: "they are declarations made in extremity, when the party is at the point of death, and when every motive to falsehood is, silenced, and the mind 1. Wright V. Littler, 3 Burrows 1244; Stark. Evid. (7th ed.) 22; Phil. Evid. (1st Am. ed.) 201. 2. Thurston v. Fritz, 91 Kan. 468, 138 Pac. R. 625, SO L.R.A. 3. Johnson v. State, SO Ala. 4S6; West v. State, 7 Tex. App. 150; Wilson v. Boerem, IS Johns. (N. Y.) 286; , Railing v. Com., 110 Pa! St. 100, 106, 1 Atl. R. 314; State V. Harper, 34 Ohio St. 78, 3S Am. Rep. 596; Mar- shall V. Chicago, etc. Ry. Co., 48 111. 497. DYING DECLARATIONS IO5 is induced by the most powerful considerations to speak the truth. A situation so awful is con- sidered by the law as creating an obligation equal to that which is imposed by a positive oath in, a court of justice." § 5. Illogical application by courts. — In ad- mitting dying declarations in evidence courts do so arbitrarily rather than logically. If the for- mer of the two .grounds of admissibility, stated in § 3, is the true one, dying declarations should be held admissible in civil as well as in criminal cases. Their admissibility is restricted, however, to homicide cases. Again, if the latter of those two reasons is the correct one dying declarations should be rejected in homicide cases where there are eye witnesses to the tragedy. They are held admissible, however, ir- respective of the number of eye witnesses. § 6. Requisites of admissibility. — To render a statement admissible as a dying declaration the following conditions must exist. The declara- tion must be made by a person competent to testify. The declarant must be dead. He must have been in extremis when he made the state- ment. He must have been, at that time, con- scious of his impending death. The subject of the investigation must be his own homicide ; and the subject of the declaration must be the cause of it and the attendant circumstances.* 4. Pulliam v. State, 88 Ala. 1 ; Archibald v. State, 122 Ind. 122; Peak v. State, 50 N. J. L. 179; Dixon v. State, 13 I06 THE LAW OF EVIDENCE § 7. Proof of consciousness of impending death. — Proof of the declarant's consciousness of his impending death may comprise both direct and circumstantial evidence. Statements^ by the declarant upon this point are admissible, and in- ferences from the nature of the wound, from, acts on the part of the declarant, etc., may be given weight in determining this question.^ § 8. Two homicides from same act. — When two homicides result from the same act, and the accused is on trial for one of them, the question sometimes arises whether the dying declara- tions of the other deceased are admissible or not. The decisions upon this point are' con- flicting; but according to the better view, which is correct upon principle, the declarations are admissible.® § 9. Vague declarations. — Dying declarations that are vague and indefinite, or incomplete in themselves, are inadmissible.'^ Fla. 636; State v. Swift, 57 Conn. 496; State v. O'Brien, 81 la. 88; Sullivan v. Com., 93 Pa. St. 284, 296; People V. Lanogan, 81 Cal. 142; State v. Simon, SO Mo. 370. 5. Westbrook v. The People, 126 Til. 81; State v. Russell, 13 Mont. 164; Mills v. State, 74 Ala. 21; Com. v. Rob- erts, 108 Mass. 296; Com. v. Brewer, 164 Mass. 577; Murphy v. People, 37 111. 447; Dumas v. State, 62 Ga. 58; Kilpatrick v. Com., 31 Pa. St. 198, 215.. 6. The State v. Terrell, 12 Richardson (S. C.) 321, 13 Am. Rep., bot. p. 745; Rex v. Baker, 2 Moody & R. 53. 7. State V. Baldwin, 79 la. 714; People v. Olmstead, 30 Mich. 431. DYING DECLARATIONS IO7 § 10. Declarations of opinion. — Dying declar- ations which constitute mere statements of opinion are inadmissible.* To be admissible the declaration must constitute statements of fact. A few courts, however, have relaxed this rule when the statements favored the accused.® § II. Interval between declaration and death. — The fact that the declarant lives for several days after making the declaration does not ren- der it inadmissible. As said by Ames, J., "The rule as to the admissibility of dying declarations does not require that they should have been made while the sufferer was literally breathing his last. It is enough that they were made when he understands that his injuries are fatal and be- lieves his death to be near at hand. If he be- lieved himself to be in a dying state, it is imma- terial that he lived four days after making the declaration."^" § 12. Form of the declaration. — A .dying declaration may be-oral or in writing.^^ It may even be communicated by signs. ^^ It may 8. Boyle v. State, lOS Ind. 469. 9. State V. Ashworth, SO La. Ann. 94. 10. Com. V. Cooper, 5 Allen (Mass.) 495, 81 Am. Dec 762. See also Com. v. Roberts, 108 Mass. 296; Fulcher V. State, 28 Tex. Apt). 465. 11. State V. Gray, 55 Kan. 135, 39 Pac. R. 1050; State v. Arnold, 35 N. C. 184; Kilgore v. State, 74 Ala. 1; State V. Kindle, 47 Ohio St. 358, 24 N. E. R. 485; Mockabee V. Com., 78 Ky. 380. 12. Com. V. Casey, 11 Cush. (Mass.) 417, 59 Am. Dec. 150; Dunn v. The People, 172 111. 582. I08 THE LAW OF EVIDENCE be spontaneous or in reply to questions. If the declarant has hopes of living when he makes a declaration in writing and verifies it orally after losing all hope of living it is admissible. ^^ When a written dying declaration is lost secondary evidence is admissible to prove its contents. But a dying declaration reduced to writing and signed by the declarant is within the best evi- dence rule.^* . § 13. Impeachment of dying declarations. — Dying declarations are impeachable the same as other evidence. This may be done by showing that the declarant's general reputation for truth and veracity was bad, that he made contradic- tory statements, etc. This impeaching testi- mony may be rebutted by introducing testimony corroborative of the dying declarations.-^^ § 14. Burden of proof. — When dying declara- tions are. offered in evidence they are presumed to be admissible; and when objection is made to them the burden of proof is on the objector to show the contrary. § 15. Function of court and jury. — When ob- jection is made to the admissibility of a dying declaration it is the function of the court to de- cide the question.^® The jury, during the inves- ts. State V. Tweedy, 11 la. 350. 14. Wilson V. Com., 22 Ky. Law Rep. 1251, 60 S. W. R. 400; Dunn v. The People, supra. 15. Tracy v. People, 97 111. 101. DYING DECLARATIONS IO9 tigation of this question, should not be present. This matter rests, however, in the sound discre- tion of the court.'-'' § 16. Weight of dying declarations. — For sev- eral reasons dying declarations are entitled to less weight than the testimony of a living wit- ness. Thus the declarant has no fear of being prosecuted for perjury. The witness who testi- fies to the declaration has less fear of being prosecuted for perjury than in ordinary cases, since he has no fear of being contradicted by the declarant. The defendant is not afforded the op- portunity to cross-examine the declarant. The jury are not afforded the opportunity to observe the demeanor of the declarant when making the declaration. The declarant's mental and physi- cal condition at the time he makes the declara- tion naturally tends to' make his statement less reliable.-^* § 17. This class of testimony not unconstitu- tional. — It has been asserted many times that to adniit this class of testimony is a violation of the federal constitution, for the reason that fhe ac- 16. Com. V. Bishop, 165 Mass. 148, 42 N. E. R. 560; State V. Elliott, 45 la. 486; People v. State, 104 N. Y. 491, 504, 10 N. E. R. 873, 58 Am. Rep. 537; Donnelly v. State, 26 N. J. L. 463, 503; State v. Simon, 50 Mo. 370. 17. Starkey v. People, 17 111. 16; North v. People, 139 111. 81; Montgomery v. State, 11 Ohio, 424. 18. State V. Evans, 124 Mo. 397; State v. Banister, 35 S. C. 290; Bates v. Com., 14 Ky. L. Rep. 177; People v. Knapp, 148 N. Y. 631; The State v. Mathes, 90 Mo. 571. See also 10 Harvard Law Review 518. no THE LAW OF EVIDENCE cused is denied his constitutional right to meet the witnesses against him "face to face." The courts, for different reasons, have always held, however, that the objection is not tenable-^^ § i8. Proof of identity of accused. — The iden- tification of the accused is a circumstance per- taining to the death of his victim; and a dying declaration of the latter upon this point, when a statement of fact and not merely an expression, of opinion, is admissible.^" § 19. Substance of declaration sufficient. — It is not essential to the admissibility of a dying declaration that the exact words be given. Where this cannot be done the substance of the words will sufifice. As said in an Illinois case, "A conscientious witness will rarely undertake, un- der oath, to give the exact words of another, spoken at another time, and on a dififerent and remote occasion. The substance of the words, if the exact words cannot be given, is all the law requires. "^^ § 20. Declaration must relate to declarant's homicide. — The declaration must relate to the declarant's own homicide. Thus a declaration by a dying person that he alone is guilty of a given murder is not admissible where another 19. Jackson v. State, 81 Wis. 127; Com. v. Richards, 18 Pick. (Mass.) 434; Hill v. Com., 2 Gratt, (Va.) 607. 20. Com. V. Roddy, 184 Pa. St. 274; McLean v. State, 16 Ala. 672; Brotherton v. The People, 7S N. Y. 1S9. 21. Starkey v. People, 17 111. 16. See also Montgomery v. The State, 11 Ohio 424. DYING DECLARATIONS III person is on trial for the victim's death. ^^ Nor is it admissible as a confession since it is not made by the person who is on trial for the homi- cide. § 21. Competency of declarant. — The declar- ant must possess the essentials of a competent witness. It must appear that he would have been competent to testify if alive.*^ If too young to understand the nature of an oath and the idea of future punishment his declaration is inadmis- sible.^* Lack of religious belief, however, does not exclude dying declarations.^® Nor does the marital relation exclude the dying declaration of one spouse against the other.^® 22. Mitchell v. Com., 12 Ky. L. Rep. 458, 14 S. W. R. 489. '23. Binns v. State, 48 Ind. 311; Wroe v. State, 20 Ohio St. 468; State v. Williams, 67 N. C. 12; Whitely v. State, 38 Ga. 50,70; Ben v. State, 37 Ala. 103; Goodall v. State, 1 Ore. 338. 24. R. V. Pike, 3 Car. & P. 598; R. v. Drummond, 1 Lea. C. C. 337. 25. Boyle v. State, 97 Ind. 322; Com. v. Mathews, 89 Ky. 287; Jones v. State, 52 Ark. 345; Hill v. State, 64 Miss. 431. 26. Moore v. State, 12 Ala. 746; State v. Belcher, 13 S C. 459. 112 THE LAW OF EVIDENCE CHAPTER VIII. Declarations Relating to Pedigree. § I. In general. — The term pedigree is used in a broad sense. It embraces matters of descent and relationship and also material evidentiary facts pertaining to them, such as birth, marriage and death. § 2. Basis of admissibility. — The basis of ad- missibihty of this class of declarations is the fact that they constitute the natural expressions of persons who possess knowledge of matters of pedigree and who, owing to the relation that ex- ists between them and the parties concerning whom the declarations are made, are naturally desirous that such declarations state the truth. As said by Lord Chancellor Eldon, "Declara- tions in the family, descriptions in wills, descrip- tions upon monuments, descriptions in bihles and ' registry books, all are admitted upon the principle that they are the natural efifusions of a party who must know the truth and who speaks upon an occasion when his mind stands in an even position without any temptation to exceed or fall short of the truth. "^ § 3. Form of the declaration. — The form of the declaration is immaterial. It may be oral, in writing, or even manifested by conduct. 1. Whitlocke v. Baker, 13 Ves. 514. See ^also Fulkerson V. Holmes, 117 U. S. 389; People v. Fulton Ins. Co., 25 Wend. (U. S.) 222. ' DECLARATIONS RELATING TO PEDIGREE II3 i Thus in the celebrated Berkely Peerage case the court held that the conduct of a parent towards his son may amount "to a daily assertion that the son is legitimate."^ § 4. Essential conditions. — To render this class of hearsay admissible it is essential to show- that the declarations were made by a person qualified to speak ; that they were ' made ante litem motam; that the declarant is dead, and that (according to the English rule) the declar- ations relate to a question of pedigree material to the issue. § 5. Essential qualification of the declarant. — The declarant must have been related to the person concerning whojn the declarations were made either by blood or marriage, and if by mar- riage the parties must have been man and wife.* Upon this point the early English rule was more liberal than the modern one. As said by Lord Eldon, "The tradition must be from per- sons having such a connection with the party to whom it relates that it is natural and likely from their domestic habits and connections that 2. 4 Camp. 416. See also Hargrave v. Hargrave, 2 Car. & K. 701; Morris v. Davies, S Clark & F. 163, 241. 3. Monkton v. Atty. Gen., 2 Russ. & M. 16S; Robson v. Atty. Gen., 10 Clark & F. 500; People v.. Fulton Ins. Co., supra; Buttrick v. Tilton, ISS Mass. 461 ; Conn. Mut. Life Ins. Co. v. Schwenk, 94 U. S. 593; Barniim V. Barnum, 43 Md. 251, 304; Stein v. Bowman, 13 Peters, 209. 1 14 THE LAW OF EVIDENCE they are speaking- the truth, and that they could not be mistaken."* While this early rule seems a sensible one the courts very generally, both in England and in this country, adhere strictly to the former one.' § 6. Remoteness of the relationship. — When the parties are related by consanguinity the re- moteness of the relationship, so far as the ad- missibility of the declarations is concerned, is immaterial." It may, however, effect their weight. When the parties are related by affinity they must be, as previously stated, husband and wife. In a celebrated case upon this point the supreme court of the United States held that a wife's sister is not qualified to make this class of declarations.'' The declarations of one spouse pertaining to the pedigree of the family of the other spouse are, however, admissible. The relationship of the parties must be estab- lished prima facie by evidence aliunde the dec- laration." § 7. Two branches of same family. — When the question in issue is whether two persons are 4. Whitlock V. Baker, supra. 5. Cases cited in note 3. 6. Shrewsburg Peerage Case, 7 H. L. Cas. 23; Buttrick V. Tilton, supra; People v. Fulton Ins. Co., supra; Davies v. Lowndes, 7 Scott N. R. 188. 7. Blackburn v. Crawfords, 3 Wall. CU. S.) 157, 187, 18 L. Ed. 186. 8. Blackburn v. Crawfords, supra. DECLARATIONS RELATING TO PEDIGREE II5 related to each other, one of whom is a member of one branch of a family, it is sufficient to prove that the other party is a member of a different branch of that family." § 8. Proof of illegitimacy. — When a lawful re- lationship is not claimed, hearsay testimony is in- admissible, as a rule, to establish an unlawful re- lationship per se. But when a relationship is acknowledged, and its legality only is disputed, hearsay from members of the family is admissi- ble to prove either the legality or illegality of such relationship.^" Some courts hold, however, that where a statute creates the relation of ancestor and heir between an- unmarried woman and her illegit- imate child, declarations by the former are ad- missible to prove the unlawful relationship per se}^ At common law, however, a declaration by a man that his deceased brother had an illegti- mate son is not admissible. ^^ Nor is a declara- tion by an illegitimate son that his natural broth- er died without issue. ^^ A declaration by a hus- band that his wife's parents were not married is admissible.^* Although an illegitimate child, at 9. Monkton v. Atty. Gen., supra (This is the only case cited by the claimants' counsel in the celebrated case of Blackburn v. Crawfords, supra.). 10. Flora v. Anderson, 75 Fed. Rep. 217. 11. Northrop v. Hale, 76 Me. 306. 12. Crispin v. Doglioni, 3 Swab. & Tr. 44. 13. Doe V. Barton, 2 Moody & Rob. 28. Il6 THE LAW OF EVIDENCE common law, is a nullius films, a declaration by his mother that he is illegitimate is admissible. ' § 9. Declarant deceased.— ^To render a declar- ation relating to pedigree admissible the declar- ant must be dead.^ The courts generally do not recognize any equivalent condition. A few courts, however, have violated this rule.-^^ Fam- ily reputation is admissible, however, although one or more members are still living. But when it relates to recent occurrences, and members of the family may be summoned as witnesses, family reputation is usually excluded. -^^ § ID. Declaration made ante litem motam. — The declaration must be made before the be- ginning of any controversy or suit relating to the subject of the declaration.^'' This condition is not essential, however, if the sole purpose of the declaration was to prevent litigation. The mere fact that the declarant was ignor- ant that a controversy had arisen does not ren- der the declaration inadmissible.^* 14. Jewel V. Jewel, 1 How. (U. S.) 219; People v. Fulton Ins. Co., 25 Wend. (N. Y.) 205. 15. Campbell v. Wilson, 23 Tex. 252. 16. Harland v. Eastman, ,107 111. 538; Butler v. Mount- garret, 7 H. L. Cas. 633. 17. Berkeley Peerage Case, 4 Camp. 417: Northrop v. Hale, supra; Stein v. Bowman, 13 Pet. (U. S.) 209, 220, 10 L. Ed. 129; Elliot v. Piersol, 1 Peters (U. S.) 328; Hodges v. Hodges, 106 N. C. 374; Nehring v. McMurriam, 94 Tex. 45, 57 S. W. R. 943; Northrop V. Hale, supra. 18. Berkeley Peerage Case, supra. DECLARATIONS RELATING TO P^EDIGREE II7 § II. Declaration based upon hearsay. — It is not essential that the declaration be based upon persona] knowledge of the declarant. It may be based upon hearsay. It is essential, however, that the person from whom he gets his infor- mation is qualified to speak. When this condi- tion is met hearsay may be based upon hearsay. ^^ § 12. Declaration made as to age. — A person's knowledge as to his own age is based upon hear- say. He may, however, testify upon this point. ^^ Again, his knowledge as to the age of at relative may be based upon hearsay. In such case dec- larations made by him on this point are admiss- ible, provided the requisite conditions are met. § 13. Declarations as to particular facts. — As to matters of pedigree the declaration may relate to particular facts, such as time of birth, place of birth, etc. It is essential, however, that the particular fact be material to the question of pedigree involved in the case.^'- 19. Berjceky Peerage Case, supra. 20. Com. V. Phillips, 162 Mass. S04, 39 N. E. R. 109; State • V. Cain, 9 W. Va. 559, 569; Houlton v. Manteuffel, 51 Minn. 185, S3 N. W. R. 541. In People v. Colbath, 141 Mich. 189, 104 N. W. R. 633, it was held that testimony of an orphan as to her age was inadmissible where it appeared that she had obtained knowledge of her age from a person outside her family. 21. Com. Life Ins. Co. v. Schwenk, 94 U. S. 593; Van Sickle V. Gibson, 40 Mich. 170; Mason v. Fuller, 45 Vt. 29; Wise v. Wynn, 59 Miss. 588, 42 Am. Rep. 381; Town of Londonderry v. Town of Andover, 28 Vt. 416, 427; Adams v, Inhab. of Swansea, 116 Mass. 591. Il8 THE LAW OF EVIDENCE § 14. Question of pedigree in issue. — Accord- ing to the English rule it is essential to the ad- missibility of this class of testimony that a ques- tion of pedigree be a main fact in issue.^^ This rule obtains in the federal courts' and in some of the state courts.^* Upon principle, however, it is unsound. The trustworthiness of the dec- laration should depend upon the conditions and circumstances that existed when the declaration was made and not at all upon the nature of the litigation in which it is offered as evidence. Many of the state courts have repudiated the English rule.^* Bigelow, C. J., commenting on the rule says : " Some of the authorities seem to limit the competency of this species of proof to cases where the main subject of inquiry re- lates to pedigree, and where the incidents of birth, marriage and death, and the times when these events happened, are directly in issue. But, upon principle, we can see no reason for such limitation. If this evidence is admissible to prove such facts at all, it is equally so in all cases whenever they become legitimate subjects of judicial inquiry and investigation.^^ 22. Haynes v. Guthrie, 13 Q. B. D. 818; Berkeley Peerage Case, supra. 23. Conn. Life InS. Co. v. Schwenk, supra; Crispin v. Dog- lioni, 3 Swab, and Tr. 44. 24. Mason v. Fuller, supra; Wise v. Wynn, supra; Van Sickle V. Gibson, supra; Dupont v. Davis, 30 Wis. 170, 25. North Brookfield v. Warren, 16 Gray (Mass.) 171. DECLARATIONS RELATING TO PEDIGREE 1 19 § 15. Facts of infancy, insanity and death. — When infancy or insanity is the fact in issue no question of pedigree is involved. Hence, accord- ing to the EngHsh rule, declarations pertaining to either of them are inadmissible.^® When the question in issue is death some courts hold that a question of pedigree is involved, while other courts hold the contrary.^'^. § 16. Pedigree of animals. — This exception to the rule against hearsay has been applied in cases where the pedigree of animals was in- volved. Thus, in an action for the value of a jackass which was negligently killed by the de- fendant the court held that common repute as to his pedigree, among those who knew him, Avas admissible.^^ And in an action to recover _ the value of a dog the court admitted testimony of his reputed pedigree. In this case the court said : " The question of pedi- gree and ancestry is a matter of common or gen- eral reputation, whether the question concerns horses, cattle, dogs or men. The matter, from the very nature of things, depends upon reputa- 26. Haynes v. Guthrie, supra (infancy) ; Conn. Life Ins. Co. V. Schwenk, supra (infancy) ; People v. Koemer, 154 N. Y. 3SS, 370 (insanity); Houlton v. Manteuifel, supra (infancy.) <* 27. Pu Pont V. Davis, 30 Wis. 170 (In this case a plea of non-jpindT of parties was sought to be met by in- troducing general repute in the family that the other joint tenant was killed in an explosion.). 28. Jones v. Packet Co., Miss. 31 So. R. 201. I20 THE LAW OF EVIDENCE tion or common repute. It is shown that cer- tain books are kept, and in them there is a regis- tration of pedigree, kept up for the information of the public, not only as to horses, but also as to cattle and dogs. These are shown to be re- ceived as satisfactory evidence of pedigree in the same manner and upon the same idea as en- tries in family records of births, deaths and mar- riages are received with regard to the human family (citing cases). It is true that in family records the entries in the books are usually made by the relatives and friends of the person, but inasmuch as dogs have no relatives competent to make entries, for them, it is allowable for such entries to be made by the owners, friends and admirers of the dog."^* § 1 7. Written declarations, entries and inscrip- tions. — Written declarations, entries and in- scriptions pertaining to matters of pedigree are admissible. No formality is essential. The- en- tries may be made in an almanac;*" or in the family bible. *^ They may consist of recitals in wills f^ deeds f^ marriage certificates Or mar- 29. Citizens' Co. v. Dew, 100 Tenn. 317. 30. Herbert v. Tuckal, T. Raym. 84. 31. Weaver v. Leiman, 52 Md. 708. See instructive note * 111 Am. St. Rep. S86-S88. 32. Shuman v. Shtiman, 27 Pa. St. 90; Gaines v. New .Or- leans, 6 Wall. (U. S.) 642; Summerhill v. Darrow, 94 Tex. 71, 57 S. W. R. 942; Pearson v. Pearson, 46 Cal. 609. 33. Fulkerson v. Homes, supra. PUBLIC AND GENERAL RIGHTS 121 iage settlements f* parish records of baptism,'^ etc. They may also consist of inscriptions, on monuments;^® tombstones;^'' family portraits ;^^ coffin plates ; rings^® and other, family memorials. § 1 8. Weight of declarations relating to pedi- gree. — As a general rule this class of testimony should be received with caution. Ordinarily it is weak evidence. The family pride of the declar- ant may have induced him to make biased state- ments. He may have possessed imperfect knowl- edge of the facts of his family history. The wit- ness who testifies to the declarations may be prejudiced. Moreover, his fear of prosecution for perjury is comparativel}'- slight. 34. Doe V. Davis, 10 Q. B. D- 314. 35. Harman v. Stearns, 95 Va. 58, 27 S. E. R. 601. 36. Camoys Peerage Case, 6 Clark & F. 801. 37. Moncton v. Atty Gen., supra; Buttrick v. Tilton, 155 Mass. 461. 38. Camoys Peerage Case, supra. 39. Vowels v., Young, 13 Ves. 144. CHAPTER IX. Declarations Relating to Matters of Public and General Rights. § I. In general. — This class of hearsay testi- mony has had a much wider application in Eng- land than in the United States. Hence the Eng- lish cases on the subject are much more numer- ous than the American. 122 THE LAW OF EVIDENCE § 2. Meaning of term. — As used in this con- nection matters of public or general interest are those in which the people generally have a pecuniary interest which effects their legal rights and liabilities. They do not include matters which merely tend to gratify curiosity or love of amusement or information. Public rights are those in which all the people of the state are interested; whereas general rights are those in which only the people of a community or district are interested. § 3. Basis of admissibility. — The basis of ad- missibility of this class of testimony is tersely stated by Lord Campbell, C. J., as follows : " The admissibility of declarations of deceased persons in such cases is sanctioned because these rights and liabilities are generally of ancient and ob- scure origin, and may be acted upon only at dis- tant intervals of time; be'cause direct proof of their existence, therefore, ought not to be re- quired ; because in local matters, in which' the community are interested, all persons living in the neighborhood are likely to be conversant ; because, common rights and liabilities being naturally talked of in public, what is dropped in conversation respecting them may be presumed to be true ; because conflicting interests would lead to contradiction from others if the state- ments were false ; and thus a trustworthy reputa- tion may arise from the concurrence of many PUBLIC AND GENERAL RIGHTS 1 23 parties unconnected with each other, who are al! interested in investigating the subject."^ § 4. Requisites of admissibility. — The requis- ite's of admissibility of this class of declarations are as follows : the declaration must express com- munity reputation as distinguished from individ- ual opinion; it must be made ante litem motam (before the beginning of any controversy or dis- pute between the parties in regard to the mat- ter) ; the declarant must have had opportunity to acquire information in regard to the matter involved ; the declarant must be deceased ; the matter involved must be, according to the Eng- lish rule, of a public or general nature. § 5. Community reputation essential. — The declaration, to be admissible within this excep- tion, must relate to community reputation. The mere allegation of a fact of which the declarant had personal knowledge is inadmissible. As said by Denman, L. C. J., in rejecting testimony that a ce-rtain person, now deceased, had planted a itree to indicate the location of a public boundary: " He does not assert that he has heard old people say what was the public road; but he plants a tree and asserts that the boundary of the road is at that point. It is the mere allegation of a fact by an individual. . . That is, he knew it to be so from what he himself observed, and not from reputation."^ 1. Reg. V. Inhab. of Bedfordshire, 4 El. & Bl. S3S. 2. Regina v. Bliss, 7 Adol. & E. 5S0. 124 THE LAW OF EVIDENCE § 6. Subject-matter of the coiiiinunity reputa- tion. — This class of declarations has been held admissible where the question in issue related to the boundary line of a town, county, parish, hamlet, manor, public highway, etc;^ to a right of common based upon immemorial custom ;* to a local custom in regard to mining;^ to the loca- tion of a section line,® or of a line between two commons;^ to a right to operate a ferry ;^ to a prescriptive liability to repair a bridge, and to a right to collect tolls on a public road.^° On the other hand, this class of declarations has been held inadmissible where the question in issue related to the right of the tenants of a particular manor to cut and sell timber ;^^ to the duty of a sheriff of a certain county to execute criminals convicted of capital offenses ;^^ to pre- scriptive rights of common by certain tenants of a manor ;^^ to the boundaries of a waste in which 3. Brisco v. Lomax, 8 Adol. & Ell. 198; Nichols v, Parker, 14 East, 331; Plaxton v. Dare, 10 Barn. & Cres. 17; Drury v. Midland Ry. Co. 127 Mass. S7i; 4. Weeks v. Sparke, 1 Maule & S. 679. , 5. Crease v. Barrett, 1 Cromp, M. & R. 919. 6. Mullaney v. Duffey, 145 111. 559. See also Klinkner v. Schmidt, 114 la." 695, 87 N. W. R. 661 (boundary of street)'. 7. Morris v. Callanan, 105 Mass. 129. 8. Pim V. Currell, 6 Mess. & W. 234. 9. R. Sutton, 8 Adol. & Ell. 516. 10. Brett V. Beales, Moody & M. 416. 11. Blackett \. Lowes, 2 Maule & S. 494. 12. R. V. Aritrobus, 2 Adol. & Ell. 793. 13. Dunraven v. Llewellyn, 15 Q. B. D. 791. PUBLIC AND GENERAL RIGHTS 125 rights of common were claimed;^'* to the bound- ary line between two private estates/^ and to matters generally that are of distinctly private concern or in which private interests predom- inate. ■'■^ § 7. Private boundaries. — As regards the ad- missibility of unsworn statments respecting private boundaries and their landmarks there is much conflict in the decisions. In England such state- ments are inadmissible except where the private boundary is coincident with a public boundary.^^ In this country the rule is much more liberal. In the great majority of the states reputation evi- dence is admissible respecting private boundar- ies and their landmarks. ^^ In a few states, how- ever, the courts follow the English rule.-^® § 8. Reasons for liberal view in the United States. — One reason assigned for the liberal view that obtains in this country as regards the 14. Dunraven -v. LlewelbTi, supra. 15. Drinkwater v. Porter, 7 Car. & P. 181 ; Clothier v. Chap- man, 14 East, 331. 16. Blackett v. Lowes, 2 M. & S. 494, IS Rev. Rep. 324; Wells V. Jesus College, 7 C. & P. 284, 32 E. C. L. 615. 17. Cases cited in note IS. 18. Morton v. Folger, IS Cal. 27S; Hunnicut v. Peyton, 102 U. S. 333 ; Clement v. Parker, 12S U. S. 309 ; Taylor v. Fornby, il6 Ala. 621, 22 So. 910; MuUaney v. Duffey, supra; Shaffer v. Gaynor, 117 N. C. IS, 23 S. E. R. 154. See notes, 15 Am. Dec. 628-631; 36 Am. Rep. 749; 60 Am. Rep. 589-591 ; 94 Am. St. Rep. 673-683. 19. Hall V. Mayo, 97 Mass. 416; Boston Water Power Co. v. Hanlon, 132 Mass. 483. 126 THE LAW OF EVIDENCE admissibility of reputation testimony respecting private boundaries is the different system of sur- vey which prevails here.^" Another reason is ne- cessity. As said by Baltzell, C. J., " Reputation or hearsay, taken in connection with other -evi- dence, is entitled to respect in cases of boundary when the lapse of time is so great as to render it difficult, if not impossible, to prove the boundary by the primitive landmarks or other evidence than that of hearsay. "^^ § 9. Particular facts provable by reputation evidence. — Reputation evidence is not admissible to prove specific acts of enjoyment, but it is ad- missible to prove the main facts in issue, such as the location of a boundary line. Formerly, specific acts of enjoyment within living memory had to. be shown before reputa- tion evidence was admissible to prove the fact in issue; but this rule is now obsolete. Declarations of a particular fact respecting a private boundary have been held -inadmissible unless they were made by persons who, it is shown, had knowledge of that whereof they spoke, and who were on the land or in possession of it Avhen the declarations were made. And furthermore, that " they must have been made when the declarant was pointing out or marking the boundaries or discharging some duties re- 20. Morton v. Folger, supra. 21. Dagget v, Willey, 6 Fla. 511. See also Clark v. Hills, 67 Tex. 1S2. PUBLIC AND GENERAL RIGHTS 12/ lating thereto."^* Many courts, however, apply a more liberal rule in regard to the admissibility of this class of testimony with respect to private boundaries. ^^ Reputation evidence is n>ot admissible to prove possession or acts of ownership.^* Nor is it ad- missible to prove a contract or matter of record. ^^ § 10. Declarations made by a surveyor. — Dec- larations made by a surveyor while engaged in locating a boundary, which limit, characterize or explain his acts, constitute a verbal part of the res gestae and are admissible as original evi- dence.^® And memoranda made by him under these circumstances are admissible.^'' But declar- ations made by him based merely on the acts of other persons are inadmissible.^* Moreover, to be admissible under other circumstances they must be traditional.^* §11. Maps and charts. — Public maps and charts, when sufficiently authenticated, are held admissible. They are not admissible, however, 22. Hunnicut v. Peyton, 102 XJ. S. 363, 364. 23. Yow V. Hamilton, 136 N. C. 357, 48 S. E. R. 782; Lemon Harstook, 80 Mo. 13; Causeland v. Fleming, 63 Pa. St. 36 ; Clement v. Packer, 125 U. S. 309. 24. Hiers v. Risher, 54 S. C. 405, 32 S. E. R. 509. 25. McCoy V. Galloway, 3 Ohio 282, 17 Am. Dec. 591. 26. Hunnicut v. Peyton,- supra. 27. Ayers v. Watson, 137 U. S. 584. See also note 94 Am. St. Rep. 682. 28. Russell v. Hunnicut, 70 Tex. 657. 29. Shutte V. Thompson, 15 Wall, 151. 128 THE LAW OF EVIDENCE to prove private matters, or such as would likely be inaccurately stated in such documents.*" When they are not ancient their contents must be shown to be correct.*'- Maps and charts, when sufficiently authenti- cated, are usually held admissible in this country to prove private boundaries ;*^ but in Massachu- setts they have been rejected.** 30. Steph. Ev., art. 35. 31. Marble v. MoMinn, 57 Barb. (N. Y.) 610. 32. Taylor v. McConigle, 120 Cal. 123, 52 Pac. R. 159; Coate V. Spear, 3 McCord (S. C.) 227, IS Am. Dec. 627 and note. 33. Boston Water Co. v. Hanlon, supra. CHAPTER X. Public Records and Public Pocuments. § I. In general. — Public records and public documents made by public officials in the dis- charge of their official duties, and which are in- tended for public inspection, are legally relevant. Confidential reports, however, are inadmissible.^ § 2. Scope of this exception. — The records and documents embraced in this class of unsworn statements include judicial records, legislative 1. Sturla et al. v. Freccia et al., 5 H. L. Cas. 623. See also Oaks V. United States, 174 U. S. 778 (In this case the governmental reports were not confidential and were held admissible). , PUBLIC RECORDS AND DOCUMENTS 1 29 journals, state papers, municipal records; official certificates, etc. § 3. Judicial records. — Public records of judi- cial proceedings are legally relevant to prove their contents. § 4. Legislative journals. — The journals of congress and of the state legislature are legally- relevant to prove all facts relating to public mat- ters recited in them.^ § 5. State papers. — These include official docu- ments and books authorized by congress or a state legislature and also official messages and proclamations by the chief executive." Such doc- uments and books are legally relevant.* § 6. Municipal records. — These include char- ters, ordinances, etc. When properly authenti- cated they are legally relevant.* § 7. Certificates by public officials. — These are inadmissible at common law, but in many states they are made admissible by statute.^ In no case, however, are they admissible to prove collateral facts.® § 8. Church records of births, marriages and deaths. — According to the English rule church 2. Watkins v. ' Holman, 16 Pet. (U. S.) 25, 56; Grob v. Cushman, 45 111. 119; Mills v. Stevens, 3 Pa. St. 22. 3. Rex V. Sutton, 4 M. & S. 532; Bryan v. Forsyth, 19 How. (U. S.) 334; Gregg v. Forsyth, 24 How. (U. S.) 179. 4. Lindsay v.' Chicago, 115 111. 120; Holly v. Bennett, 46 Minn. 386. 5. Lindsay v. Chicago, supra; United- States v Benner, 1 Baldw. (U. S.) 234. 6. Dagett v. Bonewitz, 107 Ind. 276. 130 THE LAW OF EVIDENCE registers are inadmissible unless required by law to be kept. This rule also obtains in some states;''' but according to the general rule, how- ever, which obtains in this country, it is not es- sential that they be required by law to be kept. It is sufficient if they are made by a person in the discharge of his public official duties.* § 9. Governmental gazettes. Newspapers. — Governmental gazettes, being official organs, are legally relevant to prove recitals of public acts. Newspapers, however, are usually not admiss- ible.^ An exception to this rule is where they are offered to prove notice, publication, etc. But even where this is the purpose they are excluded in some cases.-"' Another exception is quotations of current prices. § 10. IJnofficial books. — Unofficial books on literature, science and art are generally inadmiss- ible. ■'■^ In some states, however, books of science are, within certain limits, made legally relevant by statute.^'* § II. Accredited historical books. — To a lim- ited extent historical books are legally relevant. As said by Barrows, J. : " General histories of painstaking authors long since deceased, and of 7. Kennedy v. Etoyle, 10 Allen XMass.) 161. 8. Evanston v. Gunn, 99 U. S. 660; Huston v. Council Bluffs, 101 la. 33 ; People v. Dow, 64 Mich. 714. 9. Downs V. N. Y. Cent. Ry. Co., 47 N. Y. 83. 10. Whittier v. Alb: & Nar. Ins. Co., 109 Mass. 24. 11. Morris v. Harner, 7 Pet. (U. .S.)' 554. ' 12. Gould V. Scliermer, 101 la. 582. ANCIENT DOCUMENTS I3I established reputation, . . . are competent evidence upon a question of this nature. No one claims them as conclusive or infallible, but care- fully u'sed as aids and guides and accepted as true where their statements are, uniform and consis- tent with the evidence of original records and ad- mitted or well known facts, they will be found of great service in arriving at a satisfactory conclu- sion."i3 . § 12. Medical books. — Medical books consti- tute, in a large measure, the theories of medical men. For this, reason they are not legally rele- vant." 13. State V. Wagner, 61 Me. 178. See also Reynolds' Steph. on Evid. (3d ed.) art. 35; Morris v. Harmer, 32 U. S. SS3 (la this case Dr. Drake's "Picture of Cincinnati" was held adfnissible. The author was living and in court.). 14. Yoe V. The People, 49 111. 410. CHAPTER XL Ancient Documents. § I. Meaning of the term. — ^^An ancient dpcu- meiit, as used in the law of evidence, is one which is at least thirty years old.-^ § 2. The ancient rule.— Originally the docu- ment had to be more than thirty years old. 1. Whitman v. Henneberry, 73 111. 109; Jackson v. Blan- shau, 3 Johns, (N. Y.) 298 (In this case Kent, C. J., says: " The rule requiring thirty years as the test of an ancient deed is an old and well-settled rule of evidence."). 132 THE LAW OF EVIDENCE Spencer, J., says : " The ancient rule required the lapse of sixty years before a deed proved itself; this rule has been narrowed to thirty years. "^ In some early cases the limit fixed was forty years.^ § 3. Essentials of admissibility. — A document which is at least thirty years old, is found in prop- er custody, and either possession under it is shown, or some other corroborative evidence of its authenticity sufificient to free it from all just suspicion, is presumed to be genuine and is ad- missible without further proof.* §4. Reason for the rule.- — The chief reason for this rule is necessity. As said in a celebrated English case : " The proof of ancient possession is always attended with difficult3^ Time has re- moved the witnesses who could prove acts of ownership of their personal knowledge, and re- sort must necessarily be had to written evi- dence."® § 5. Meaning of proper custody. — The term, " proper custody," as used in this connection, is given a somevvhat liberal -interpretation. It is not essential that the document be found in the most appropriate custody. It is sufficient if the actual custody is so reasonably, and probably accounted for that it impresses the mind with 2. Jackson v. Blanshau, supra. 3. Benson v. Olive, Bunb 284 (1730). 4. Applegate v. Lexington Mining Co., 117 U. S. 25S, 262; Pettingell v. Boynton, 139 Mass. 244; Greenfield v. Camden, 74 Me. S6. 5. Malcomson v. O'Dea, 10 H. L. Gas. S93. ANCIENT DOCUMENTS 1 33 the conviction that the iristrument found in such custody must be genuine.^ As said by Mr. Wood, "Documents found in a place in which, and under the care of persons with whom, such papers might naturally and reasonably be expected ta be found, or in the possession of persons having an interest in them, are in precisely the custody which gives authenticity to documents found within it."'' The custodian, should state under oath such' facts as he may possess that would tend to enlighten the court as to the genuineness of the document.^ § 6. Acts of enjoyment. — It is not essential to show acts of enjoyment under the document. Nor is it essential to show that the custodian is directly interested in the title ;" or that he is in possession of it.^^ § 7. Suspicious circumstances. — This class of testimony is inherently weak and received with caution. If there are suspicious circumstances connected withthe document they must be satis- factorily explained. Ordinarily the antiquity of the document is sufificient to raise a presumption 6. Meath v. Winchester, 3 Bing. (N. C.) 201, 10 Bligh 462. See also Harris v. Hoskins, 2 Tex. Civ. App. 486. 7. Wood, Pract. Evid., sec. 99. 8. Earl V. Lewis, 4 Esp. I. 9. City of Boston v. Richardson, lOS Mass. 3S7; Havens v. Sea Shore Land Co., 47 N. J. Eq. 365; Applegate v. Lex- ington Mining Co., supra; Malcomson v. O'Dea, supra. 10. Goodwin v. Jack, 62 Me. 414. 11. Harlan vT Howard, 79 Ky. 373; Applegate v. Lexington Mining Co., supra. 134 THE LAW OF EVIDENCE of its genuineness. Erasures, interlineations, or other suspicious circumstances may, howeverj re- but this presumption. In such case, as said by Mr. Starkie, " it is a matter of prudence and dis- cretion to prove it in t;he usual way by means of an attesting witness where living, or by proof of the handwriting of an attesting witness where they are all dead, in order to rebut the unfavor- able presumption arising from an inspection of the deed."^^ It has been held, however, that where an erasure and substitution do not increase the obligee's interest, or the obligor's obligation, they do not afit'ect either the adrnissibility or val- idity of the document.^* This rule is a sensible one and in harmony with tfie modern view. Ac- cording to the early rule an immaterial alteration in a document rendered the. instrument void.^* § 8. Possesion under the document. — Proof of possession under the deed, even for a short time, is sufficient to establish the authenticity of the document. ^^ Proof of possession, however, is not essential. Testimony of other facts which raise a fair presumption of the genuineness of the doc- ument is sufficient.^'' As said by Mr. Wood, " The 12. 1 Stark. Evid., § 344. 13. Coulson V. Walton, 9 Pet. (U. S.) 62. 14. Pigot's Case, 11 Coke Rep. 27. 15. Hamlin v. Burwell, 75 Va. SSI (In this case there was proof of possession for five years and it was held sufficient). 16. White V. Hiitchins, 40 Ala. S3 ; Whitman v. Henneberry, 73 111. 109. ANCIENT DOCUMENTS I35 absence of proof of possession afifects merely the weight and not the admissibiHty of the instru- ment; and ancient documents purporting to be a part of the transaction to which they relate, and not a mere narrative of them, are receivable as evidence -that these transactions actually oc- curred. Where proof of possession cannot be had, the deed may be read, if its genuinen-ess is satisfactorily established by other circum- stances."^^ § 9. Mode of estimating the age of the docu- ment. — As previously stated, the document must be at least thirty years old. As a general rule, in computing the age of a document, , time is reckoned from the date of the instrument to the date it is offered in evidence. This rule obtains in England and quite generally in this country.^^ In a few states, however, including New York and Pennsylvania, the courts have applied a dif- ferent rule in the case of wills where possession is based wholly upon the document. In this class of cases these courts have held that time is to be' computed from the death of the testator.^^ § 10. Scope of the rule. — The rule that ancient documents prove themselves is not confined to 17. Wood, Pract. Evid., sec. 99. 18. Renter v. Stuckart, 181 111. 529; Bass v. Sevier, 58 Tex. 557; Man v. Ricketts, 7 Beav. 93; Doe v. Wolley, 8 B. & C. 22 (In this case Lord Tenderden says: "The rule of computing thirty years from the date of a deed is equally applicable to a will.). 19. Staring v. Bowen, 6 Barb. (N. Y.) 109; Shaller v. Brand, 6 Bimi. (Pa.) 439. 136 THE LAW OF EVIDENCE deeds and wills. It is also applicable to many other kinds of documents, including parish reg- isters, entries in family bibles, bonds, leases, chartularies of abbeys, pay rolls, certificates, powers of attorney, licenses, etc. CHAPTER XII. Declarations Against Interest by Persons Since Deceased. § I. In general. — Admissions and declarations against interest by persons since deceased con- stitute separate and distinct classes of hearsay testimony. The former are adm'issible only against the parties who make them, or persons who are in privity with them. The latter, on the oth^r hand, are admissible in suits' between per- sons Avho were strangers to the declarants. § 2. The rule. — Declarations which are against the pecuniary or proprietary interest of the declarant, made without any probable motive to falsify, and under circumstances which raise the presumption that he had knowledge of the ad- verse interest when he made them, are admiss- ible, after his death, even in a suit between par- ties who were strangers to him. Mr. Stevens says that " a declaration is deemed' to be relevant if the declarant had peculiar means of knowing the matter stated, if he had no 'interest to mis- AGAINST INTEREST BY PERSONS DECEASED 1 37 represent it, and it was opposed to his pecuniary or proprietary interest."^ § 3. The adverse interest. — As stated in §-2, the interest involved in the declaration must be of a pecuniary or proprietary nature. It may consist of an acknowledgement by the declarant that he is indebted to another •? that an account he had against another person has been paid;^ that he misappropriated money belonging to an- other person;* that a certain chattel in his pos- session belongs to another person;^ that he holds certain property in trust;* that he pays rent for the realty he occupies, rebutting the presump- tion that he owns it,^ etc. § 4. The interest partly self-serving. — It some- times happens that the interest involved in the declaration is partly against the declarant's in- 1. Steph. Dig. Evid. art. 28. 2. Bartlett v. Patton, 33 W. Va. 71, 10 S. E. R. 21, S L. R. A. 523; Story v. Story, 22 Ky. L. Rep. 1731, 61 S. W. R. 279. 3. Higham v. Ridgeway, 10 East 109, 10 Rev. Rep. 235; Davies v. Humphreys, 6 M. & W. 153 ; Scammon v. Scami-non, 33 N. H. 52 ; Keesling v." Powell, 149 Ind. 372, 49 N. E. R. 265. 4. Mahaska County v. Ingalls, 16 la. 81. 5. Riggs V. Powell, 142 III. 453, 32 N. E. R. 482; Dean v. Wilkerson, 126 Ind. 338, 26 N. E. R. 55. 6. Houser v. Lamont, 55 Pa. St. 311, 93 Am. Dec. 755; Lamar v. Pearre, 90 Ga. 377, 17 S. E. R. 92. 7. Currier v. Gale, 14 Gray (Mass.) 504, 11 Am. Dec. 343 ; Crain, v. Wright, 46 III. 107 ; Chandler v. Evans, 8 Blackf. (Ind.) 322. 138 THE LAW OF EVIDENCE terest and partly in his favor. In such cases the part which is self-serving should be eliminated, provided this can be done without destroying the sense of what remains.^ If this cannot be done, and the part of the declaration which is against the interest of the declarant does not represent a greater interest than the self-serving part represents, the whole declaration is inad- missible.® This principle is applicable where the receipt of money on a debt revives a liability barred by the statute of^limitations i^" or creates directly a foundation for receiving a larger amount.^^ It has been held, however, that where the declaration is prima /aaV against the pecuni- ary or proprietary interest of the declarant it is admissible even when in. reality it is, on the whole, beneficial to him.^^ Thus, in a celebrated English case, where the issue was whether the receipt of £2000 by the defendant's wife from her father, now deceased, was a gift or a loan, entries made in the father's private account book, acknowledging the receipt at different times of 8. Chamberlain v. Chamberlain, 116 111. 480, 6 N. E. R. 444. 9. Granton v. Size, 22 U. C. Q B. D. 473, 2 Grfint Err. & App. (U. C.) 368; Coffin v. Buckman, 12 Me. 471; Beatty v. Clement, 12 La. Ann. 82; Addams v. Seitzinger, 1 Watts & S. (Pa.) 243; Freeman v. Brewster, 93 Ga. 648, 21 S. E. R. 16S. 10. Glynn v. Bank of England, 2 Ves. 38. 11. Haines v. Christie, 28 Colo. 502, 66 Pac. R. 883. 12. Taylor v. Witham, 3 Gh. D. 60S, 45 L. J. Ch. 798; Turner V. Crisp, 2 Ld. Raymond 1320. AGAINST INTEREST BY PERSONS DECEASED 1 39 £20 interest in connection with the transaction, were held admissible.^* § 5. Declarations favorable to wife and unfav- orable to creditors.— Where the declarations of a husband are against his own pecuniary or pro- prietary interest, and the purpose of them is to favor his wife at the expense of his creditors, they are inadmissible.^* § 6. Declarations by a beneficiary under a will. — Under this exception to the rule against hear- say a declaration by a beneficiary under a will may be admissible. Thus, where the issue was the mental capacity of the testator to make a will, in which there was but one beneficiary, a declaration by the latter, made on the day the will was made, that the testator " is just alive and that is all," has been held admissible. ^^ It is to be observed, however, that had there been other beneficiaries, in the case stated, the declar- ation would have been inadmissible. § 7. The adverse interest contingent. — The adverse interest must be actual as distinguished from contingent.^® It must be real or apparent when the declaration is made.-^'^ Thus, a declara- tion made by a prospective heir is inadmissible.^* 13. Taylor v. Witham, supra. 14. Dmitry v. Pollock, 12 La. 296. 15. Egbers v. Egbers, 177 111. 82. 16. Tate V. Tate, 7S Va. 552; Smith v. Blakey, L. R. 2 Q. B. D. 326, 8 B. & S. 157. 17. Thaxter v. Inglis, 121 Cal. 593, 54 Pac. R. 86; Wilson v. Simpson, 68 Tex. 306, 4 S. W. R. 839. 18. Morton v. Massie, 3 Mo. 482. 140 THE LAW OF EVIDENCE § 8. The adverse interest not pecuniary or pro- prietary. — When the adverse interest is not pe- cuniary or proprietary the declaration is inad- missible. Thus a declaration which purports criminal liability^^ on the part of the, declarant, or liability ex contractu^" or ex delicto,^'^ is inad- missible. § 9. Declaration by a partner. — A declaration by a person, since deceased, that a given other person was, or was not, his partner may, or may not, be admissible, depending upon the circum- stances of the particular case. Thus, in an action against A and B as partners, A died during the pendency of the action, and the plaintiff contin- ued it against B, who denied that he was a part- ner. The business was insolvent. To prove his plea B 6ffered in evidence a declaration by A 19. Davis V. Com. 95 Ky. 19, 23 S. W. R. S8S, IS Ky. L. Rep. 396, 44 Am. St. Rep. 201; West v. State, 76 Ala. 98; State v. West, 45 La. Ann. 14, 12 So. R. 7; Sussex Peerage Case, 11 CI. & F. 85, 8 Jur. 793, 8 Eng. Reprint 1034 (In this case a clergyman, in keeping secret a mar- riage ceremony which he had performed, made himself criminally liable to a fine ; and a declaration by him to his son that he had performed the ceremony was held inadmissible.). 20. Smith V. Blakey, L. R. 2 Q. B. D. 326, 8 B. & S. 157, 36 L. J. Q. B. 156; Perchard v. Benyon, 1 Cox Ch. 214, 29 Eng. Reprint 1134. Contra, Halvorsen v. Moon, etc., Lumber Co., 87 Minn. 18, 19 N. W. R, 28, 94 Am. St. Rep. 669. 21. Ayer v. Colgrove, 81 Hun (N. Y.) 322, 30" N. Y. Suppl. 788 (seduction); Penner v. Cooper, 4 Munf. (Va.) 458 (trespass). AGAINST INTEREST BY PERSONS DECEASED I4I that B was not his partner. As the business was insolvent the declai^ation was held admissible. In view of the insolvency, A's declaration was against his pecuniary interest. As said by the court, " The assertion, therefore, that Humes (B) was not a partner, having been made at a time when the partnership business had failed, it was a declaration exonerating him from a pecuniary liability for the parnership debts, and, if true, to this extent doubled the ultimate amount of Glover's (A's) liability. "^^ It may be well to observe that had the business been solvent, and had A's declaration been that B was his part- ner the declaration would likewise have been ad- missible. The declaration in such case would have been against A's pecuniary interest because it would have been an acknowledgement by him that B had an interest in the partnership assets. Again, where a person, .since deceased, held in his own name certain property, a declaration by him that a partnership existed was held admiss- ible in an action by the surviving partner to re- cover the property.^* § 10. Declaration by a guardian or adopted parent.- — Where the issue is whether a given in- fant was the ward or adopted child of a person, since deceased, a declaration by the latter that the infant was merely his ward is inadmissible. This is because his declaration was in his favor 22. Humes v. O'Bryan, 74 Ala. 64. 23. Card v. Moore, 173 N. Y, 598, 66 N. E. R, llOS. 142 THE LAW OF EVIDENCE rather than against his interest.^* On the other hand, a declaration by him that the infant was his adopted child would be admissible because it would be against his interest, in that, if true, it would show legal pecuniary obligations.^^ § II. Declaration by a policy holder. — In an action on an insurance policy it was held that a declaration by the assured, since deceased, that his lungs were weak was inadmissible because it did not affect in any way his pecuniary inter- ests.^^ But had weak lungs on his part reduced his pecuniary interest in the policy, or increased his premiums or assessments, the declaration would have been admissible. § 12. Statement that the declarant is a negro. —In applying this exception to the rule against hearsay some courts have been very loose. Thus, in an Alabama case, a declaration by a person, since deceased, that he was a negro was held ad- missible.^''' This seems a clear violation of the spirit, of the exception and an extension of it which was not at all justifiable. 24. Rulofson v. Billings, 140 Cal. 4S2, 74 Pac. R. 35. 25. White V. Holman, 25 Tex. Giv. App. 152, 60 S. W. R. 437. 26. Ry. Officials' and Employees' Ace. Assoc, v. Coady, 80 III. App. 563. 27. Locklayer v. Locklayer, 139 Ala. 354, 35 So. R. 1008. For a strict aplication of the exception see West. Md. Ry. Co. V. Mauro, 32 Md. 280 (In this case a declaration by an official that he had been paid five dollars on a sub- scription to stock was inadmissible — that it was not against his pecuniary interest.).. AGAINST INTEREST BY PERSONS DECEASED 1 43 § 13. Death of the declarant a prerequisite. — According to the English rule the declarant must be dead.^^ The fact that he is in extremis is not sufficient.^® In this country the English rule is generally followed;^" but in a few states a more liberal rule has been recognized.®^ § 14. Collateral facts may be proved. — This class of declarations is admissible to prove not only the main facts embodied in them but also collateral facts fairly included.*^ Thus, in a writ- ten receipt for money paid the writing may be introduced to prove the date;®* the nature of the claim;®* the party who made the payment;®^ spe-' cial circumstances connected with the transac- tion,®^ etc. 28. Spargo v. Brown, 9 Barn. & C. 93S; Phillips v. Cole, 10 Adol. & Ell. 106. 29. Harrison v. Blades, 3 Camp. 458. 30. Currier v. Gale, 14 Gray (Mass.) 504, 17 Am. Dec. 343; Rand v. Dodge, 17 N, H. 343. 31. Griffith v. Sauls, 77 Tex. 630; Harriman v. Brown, 8 Leigh (Va.) 697. In an exceedingly important Iowa case, Dillon, J., says : " We need only say, that probably the courts would not be inclined to relax this rule so as to dispense with this condition (death of the declarant), unless it might be in the case of confirmed insanity." See case in foot-note 4. 32. Taylor v. Gould, 57 Pa. St. 152; Hart v. Kendall, 82 Ala. 144, 3 So. R. 41. 33. Taylor v. Gould, supra. 34. Higham v. RidgTvay, supra. 35. Thompson v. Stevens, 2 Nott & M. (S. C.) 493. 36. Higham v. Ridgway, supra. 144 THE LAW OF EVIDENCE § 15. Declarations made post litem motam. — In the case of declarations relating to pedigree and those relating to public and general interest it is essential that the unsworn statements be made ante litem motam. But in the case of dec- larations against interest by parties since de- ceased this feature is not essential. The true test, as stated in a Minnesota case, is " whether they were made under circumstances justifying the conclusion that there was no probable mo- tive to falsify the facts declared. The existence or nonexistence of a controversy at the time a declaration was made might be a material cir- cumstance to enable the court to determine whether there was any probable motive for the declarant to falsify as to the facts declared. Whether the fact that the declaration was made after a controversy arose would tend to show such motive would depend upon the character and facts of each particular case."^''' § 16. Form of the declaration. — According to the English rule the declaration may be oral as well as in writing.^* This rule obtains in Can- ada^® and very generally in the United States.*" In Massachusetts, however, the courts have held 37. Halvorsen v. Moon & Kerr Lumber Co., 87 Minn. 18. 38. Doe V. Pettett, 5 B. & Aid. 223, 7 E. C. L. 129; Sussex Peerage Case, supra, Barker v. Rag,- 2 Russ. 3 Eng. Ch. 63. 39. Granton v. Size, sup'ra. 40. White v. Chouteau, 10 Barb. (N. Y.) 202; Trego v. Huz- zard, 19 Pa. St. 441, 35 Pa. St. 9; Humes v. O'Bryan, 74 Ala. 64; Hosford v. Rowe, 41 Minn. 245, 42 N. W. R. 1018; Bowen v. Chase, 98 U. S. 254, 25 L. ed. 47. AGAINST INTEREST BY PERSONS DECEASED I45 that oral declarations are inadmissible where the adverse interest is a pecuniary as distin- guished from a proprietary one.*^ In the impor- tant Iowa case cited in foot-note 4, Dillon, J., says: "From the unbroken current of English and the decided preponderance of American author- ity, we think the present state of the law is, that verbal declaraltions are receivable." An excep- tion to this rule is where the substantive law / makes a written instrument essential to effect aj particular legal result. In this case an oral dec-' laration against interest is inadmissible. Thus, a declaration by a party since deceased that he had sold certain lands to a claimant is inadmis- sible to establish the claim, where no deed is ^ offered or accounted for.*^ § 17. Prerequisite of personal knowledge of the declarant. — Upon this point the authorities are in conflict. Some courts hold that the declarant must have personal knowledge of the facts stated in his declaration.*^ Other courts hold that the declaration may be based upon hearsay.** Ac- cording to the English rule the declarant must be a person " having a competent knowledge, or whose duty it was to know;"*^. " having peculiar 41. Jones v. Howard, 3 Allen (Mass:) 223; Frahiingham Manuf. Co. v. Barnard, 2 Pick. (Mass.) 532. 42. 16 Cyc. foot-note 62; Marsh v. Ne-iha-sa-ne Park Assoc, 18 Misc. (N. Y.) 314, 42 N. Y. Suppl. 996. 43. Arbuckle v. Templeton, 65 Vt. 205 ; Bird v. Hueston, 10 Ohio St. 428. 44. Crease v. Barrett, 1 Cr: M. & R. 919. 45: Short V. Lee, 2 Jac. & W. 464, 489. 146 THE LAW OF EVIDENCE means of knowledge ;"** having " a competency to know it."*'' While Dr. Greenleaf says " it does not seem necessary that the fact should have been stated on the personal knowledge of the declarant."*^ 46. Gkadow v. Atkins, 1 Cr. & M. 410. 47. Doe V. Robson, IS East 32. 48. 1 Greenl. Evid. (16th ed.) § 153. CHAPTER XIII. Account-Book Entries. § I. In general. — Owing to the fact that some courts fail to discriminate properly between ac- count-book entries and entries made in the reg- ular course of business in the books of strangers to the suit considerable confusion exists in the decisions. While these two classes of testimony are closely allied in principle, and probably are traceable to a common origin, they are not syn- onymous. The rule of evidence relating to the former had its origin nearly a century before the rule relating to the latter. Moreover, the historical development of each has been dififerent. Testi- mony of entries made in the regular course of business is admissible in a suit between stran- gers ; while testimony of account-book entries is not. Moreover, the requisites of admissibility of the two classes of testimony are not identical. Both rules, however, came into existence before ACCOUNT-BOOK ENTRIES I47 the rule against hearsay, and therefore neither, in the strict sense, is an exception to that rule; and, for a. similar reason, several of the other so-called exceptions to the rule against hearsay are in reality independent rules. § 2. Historical development of the rule in Eng- land. — At the English common law parties to the litigation were incompetent witnesses. They were allowed, however, even in early times, to introduce in evidence their books of account. This was a violation of the strict rules of evi- dence. It allowed parties to the litigation to introduce their own testimony — •" make evidence for themselves." The basis of, the rule was ne- cessity, either real or presumed. Lord Chancel- lor Hardwicke says, "A tradesman's books are admitted as evidence through no absolute neces- sity, but the reason of a presumption of necessity only, inferred from the nature of commerce."^ This view harmonizes with the fact that since parties to the litigation were made competent witnesses by statute account-book entries have been admitted in evidence the same as before. In England the scope of the rule relating to the admissibility of account-book entries has been considerably restricted,, both by parliament and by the courts. In 1609 a statute was passed which provided, among other things, that this class of testimony be excluded " in any action for any money due for wares hereafter to be delivered, or for work hereafter to be done, above one year before the same action brought, except 148 THE LAW OF EVIDENCE he . . . shall have obtained or gotten a bill of debt or obligation of the debtor for the said debt, or shall have brought or pursued against the said debtor . . . some action for the said debt, wares or work done, within one year next after the same wares delivered, money due for wares delivered, or work done."^ This statute, while ignored by the lower courts, was recognized and applied by the superior courts for more than two hundred years; and seems never to have been repealed. Finally these courts looked with disfavor upon the rule which admit- ted account-book entries of parties to the litiga- tion, and restricted this class of testimony to account-book entries made by clerks.^ This is the modern English rule.* § 3. Historical development of the rule in the United States. — In the United States the devel- opment of the rule relating to account-book en- tries has been different from that which has ob- tained in England. The early colonial courts ig- nored the one-year pi-ovision of the English act of 1609, and the courts generally have always admitted account-book entries made by the par- ties to the litigation, as well as those made by their clerks. As said in a Pennsylvania case, " though in England the shop book of a trades- man is not evidence of a debt without the assist- 1. Omychund v. Barker, 1 Atk. 21, 49. ' 2. 7 Jac. I. ch. 12. 3. Cooper v. Marsden, 1 Esp. 1. 4. Taylor, Evid. (9th' ed.) §§ 709-713. ACCOUNT-BOOK ENTRIES I49 ant oath of the clerk who made the entry, yet here, from the necessity of the case, as business is often carried on by the principal, and many of our tradesmen do not keep clerks, the book proved by the plaintiff himself has always been admitted."^ The courts hold, however, that the entries must be verified under oath. In most of the states, at least, statutes govern the admis- sibility of this class of testimony, and while these statutes are not entirely harmonious the general principles of the common law underiie them. § 4. Scope of the rule. — Generally, the rule is restricted to proof of account-book entries of goods sold and work or labor done. In some jurisdictions, however, it has been extended to account-book entries of professional services rendered by attorneys, physicians, etc.^ § 5. Inadmissible to prove collateral facts. — Account-book entries are not admissible to prove collateral facts. Thus, they are not admissible to prove merely the rate of wages agreed to be paid, or the length of the service;^ or that credit was given to a person other than the one to 5. Poultney v. Ross, I Dall. (Pa.) 238, 1 Law ed. 117. 6. Field v. Thompson, 119 Mass. 151; Ball v. Gates, 12 Mete. (Mass.) 491. 7. Mattingly v. Shortell, 27 Ky. Law Rep. 426, 85 S.'W. R. 215. 8. Richardson v. Dorman, 28 Ala. 679; Hall v. Ard, 48 Pa. St. 22; Ganahl v. Shore, 24 Ga. 17. 9. Silver v. Worcester, 72 Me. 322, 330. . . 10. Cooley v. Collins, 186 Mass. 507, 71' N. E. R. 979 ; Kaiser V. Alexander, 144 Mass. 71, 78, 12 N. E. R. 209.' , 150 THK LAW OF EVIDENCE whom the goods were sold and. delivered j^" or a promise of payment ;^^ or that the sale was made conditional ;^^ or that the sale was made on com- mission;^^ or that on certain days the plaintiff did not work for the defendant ;^* or a promise to answer for the debt of another ;^^ or that credit was given solely to a certain third party. -^^ § 6. The entries must be original. — It is es- sential that the entries be original. Subsequently posted dntries are inadmissible. Thus, where the entries are made in a day book or journal and subsequently posted in a ledger the ledger is in- admissible. '■^ The form of the book, however, is immaterial, provided it is a book of original entry. Thus, it may be a book kept in th-e form of a ledger if this is the usual mode the party uses in keeping his accounts. ^^ The entries may be made temporarily on a slate, ^® pieces of pa- per,^" pieces of board,^^ etc., and within a reason- 11. Somers v. Wright, 114 Mass. 171. 12. Rogers v. Severson, 2 Gill (Md.) 385. 13. Richards v. Burrows, 62 Mich. 117. 14. Morse v. Potter, 4 Mass. 292. 15. Tarrand v. Gage, 3 Vt. 326. 16. Peck V. Kellar, 76 N. Y. 604. 17. Fitzgerald v. Mc'Carty, 55 la. 702, 8 N. W. R. 646; Gries- heimer v. Tanenbaum, 124 N. Y. 650, 26 N. E. R. 957. 18. Faxon v. Hollis, 13 Mass. 427; Wells v. Hatch, 43 N. H. 246. 19. Faxon v. Hollis, supra; Landis v. Turner, 14 Cal. 573; Moses V. United States, 166 U. S. 571. 20. Taylor v. Davis, 82 Wis. 455; Robinson v. Mulder, 81 Mich. 75. ACCOUNT-BOOK ENTRIES I5I able time transcribed in the book of original entry. But entries that are merely copied from temporary memoranda made by another person are inadmissible. Thus, where the bookkeeper merely copies the entries .from memoranda con- tained in time books or' time slips kept by the laborers the entries are not admissible. ^^ Some courts hold that personal knowledge of the fact stated in the entry is essential. Thus, in a Michi- gan case, it is held that a merchant's books of account are inadmissible in an action for goods sold and delivered, where the only testimony to support them is that of the bookkeeper who merely transcribed the entries from slips handed him by the salesmen, and who had no personal knowledge of the sale and delivery of the articles- charged. This case also holds that personal knowledge of the party who makes the entry has been held essential " from the earliest cases."^* Other courts, on the other hand, hold the con- trary view. Thus, in an Illinois case, where the entries were made from time-slips, which were marked " approved " by the foreman, who testi- fied to their correctness, and where the parties who transcribed the entries to the account books testified that the entries were correctly copied 21. -Smith V. Sandford, 12 Pick. (Mass.) 139, 22 Am. Dec. 41s ; Paine v. Sherwood, 21 Minn. 225 ; Pallman v. Smith, 135 Pa. St. 188; West v. Van Tuyl, 119 N. Y. 623. 22. Swan v. Thurman, 112 Mich. 416; Schnellbacher v. Plumb. Co., 108 III. App. 486. 23. Swan v. Thurman, supra. 152 THE LAW OF EVIDENCE from the time-slips, the entries were held ad- missible.^* The latter view seems a very sensible one and should be followed. The same principle applies where sales clerks in a store report sales to the bookkeeper who enters them in the ac- count book. If the transactions are properly verified it does not seem necessary that the book- keeper have personal knowledge of the sales. But in such case both the salesmen and the book- keeper should testify to the correctness of the entries.^^ The entries may be made in pencil as well as in ink.^® In the case of services performed they are admissible to prov'e work done by an ap- prentice as well as that done by the master.^^ § 7. Entries must be reasonably contemporan- eous with the transactions. — It is algo essential that the entries be made within a reasonable time after the transactions occur. ^* In other words, they must be made in the due course of business. Each case, however, depends upon its own particular circumstances. As said by Bige- low, J., " Although the rule is well settled that the entries, to be com.petent, must have been made. at or near the time the charges were in- curred, it does not fix any precise time within which they must be made. There is no inflexible 24. Chisholm v. Beaman Machine Co. 160 III. 101. 25. Smith v. Sanford, 12 Pick. '(Mass.) 139, 22 Am. Dec. 41S. 26. Gibson v. Bailey, 13. Mete. (Mass.) 537. 27. Mathes v. Robinson, 8 Mete.' (Mass.). 269, 41 Am. Dec. 505. 28. Bentley v. Ward, 116 Mass. 333.; Griesheimer v. Tanen- baum, 124 N. Y. 650. ACCOUNT-BOOK ENTRIES 1 53 rule requiring them to be made on the same day. In this particular every case must be made to depend very much upon its own peculiar circum- stances, having regard to the situation of the parties, the kind of business, the mode of con- ducting it, and the time and manner of making the entries."^® If the entries, constitute merely a recital of past transactions, rather than an ac- count of transactions made in the due course of business, they are inadmissible.'"' § 8. Inadmissible in a suit between strangers. —According to the English rule, and also the general rule in this country, this class of testi- mony is not admissible in a suit between strang- ers. The books of account must belong to a party to the suit, or a party who is in privity with him.®^ This rule, however, has not always been strictly enforced.*^ § g. Amount involved limited. — As a general rule, the amount involved in the entries must be comparatively small. This is especially true in the case of aash entries.^^ The maximum amount in regard to such entries is usually $io. The lim- itation fixed by the English courts is 40 shillings. 29. Barker v. Haskell, 9 Cush. (Mass.) 218. 30. Henshaw v. Davis, 5 Cush. (Mass.) 145. 31. Somers v. Wright, supra; Field v. Thompson, 119 Mass. 151. 32. Coleman v. Ins. Association, 77 Minn. 31, 79 N. W. R. 588. 33. Silver v. Worcester, supra; Kelton v. Hill, 58 Me. 114; Davis v. Sanford, 9 Allen (Mass.) 216; Rich v. Eldridge, 42 N. H. 153, 158; Pettit v. Teal, 57 Ga. 145. 154 THE LAW OF EVIDENCE In some states the amount is fixed by statute.^* In the case of goods sold on credit, or services performed, the rule is more liberal. It has been held, however, that a charge of $300 for " seven gold American watches " is too large an amount to be proved by this class of testimony.^^ § ID. Verifi.cation of the entries. — To render account-book entries admissible they must be authenticated or verified, either by oral testi- mony of the party who made them, or in case of his death by proving his handwriting.^^ In the case of entries made by partners each should verify his own entries. ^'^ And where a wife makes them in the capacity of agent of her husband both spouses should testify in regard to them.?^ When the party who makes the entries has no personal knowledge of the facts recorded his testimony must be supplemented by that of the party who has such knowledge.^* This rule is correct upon principle and is quite generally enforced. A few courts, however, have applied a more liberal rule.*» 34. Alexander v. Smoot, 35 N. C. 461. 35. Bustin V. Rodgers, 11 Cush. (Mass.) 216. 36. McDonald v. Carnes, 90 Ala. 147; Watrous v. Cunning- ham, 71 Cal. 30; Hoowr v. Gehr, 62 Pa. St. 136. 37. Horton v. MuUer, 84 Ala. 537. 38. Smith V. Smith, 163 N. Y. 168, 57 N. E. R. 300. 39. Smith V. Smith, supra; Taylor v. Davis, 82 Wis. 455, 52 N. W. R. 756; Hart v. Kendall, 82 Ala. 144. 40. Diament v. Colloty, 66 N. J. L. 295, 49 Atl. R. 445 ; Anchor Milling Co. v. Walsh, 108 Mo. 284, 18 S. W. R. 904, 32. Am. St. Rep. 300. ACCOUNT-BOOK ENTRIES 1 55 § II. Rule where more satisfactory testimony is obtainable. — As previously stated, the basis of admissibility of account-book entries is necessity. As said in a New York case, " such is the general course of business that no proof could be fur- nished of the frequent small transactions between men, without resorting to the entries which they themselves have made in this form of ac- counts."*^ Where more satisfactory testimony is obtainable some courts reject this class of tes- timony.*^ Many courts, however, hold the con- trary view. These courts, however, usually re- quire that the entries be properly authenticated. Some require proof that some of the articles charged have been delivered ; and furthermore that the party keeps fair and honest accounts.*'' Some reject this class of testimony where the party keeps a clerk.** In many states, however, the admissibility of this class of testimony is regulated by statutes, and these statutes gener- ally provide that when account-book entries are authenticated as provided in the statutes they shall constitute prima facie evidence of the facts stated in them. 41. Larne v. Rowland, 7 Barb. (N. Y.) 107. See also Pratt V. White, -132 Mass. 477; W€amer v. Juart, 29 Pa. St. 257, 72 Am. Dec. 627. 42. Bracken v. Dillon, 64 Ga. 243, 37 Am. Rep. 70; -Eastman V. Moulton, 3 N. H. 156. 43. Smith v. Smith, supra; Vosburg v. Thayer, 12 Johns (N. Y.) 461. 44. Smith v. Smith, supra; Jackson V. Evans, 8 Mich. 476. 156 THE LAW OF EVIDENCE § 12. Alterations, erasures, mutilations, etc. — ■ Where account-book entries have alterations, erasures, etc., which give them a fraudulent ap- pearance they should not be admitted unlegs they are explained to the satisfaction of the court.*^ In the case of mutilations it depends upon the circumstances of the particular case. It has been held that mutilation of a book of original entry by the party who has custody of it is such a supicious circumstance that it cannot be supported by introducing the ledger.*® On the other hand it has been held that the mere fact of mutilation affects the weight rather than the admissibility of the book.*'^ Mr. Wharton says, " The book on its face must be regular. Mutilated memoranda cannot constitute a book of original entries."** § 13. Book with only one entry. — A book which contains only a single entry, although designated an account book, is inadmissible. " It has never been held that a single entry makes an account-book, nor has it ever been held that a single entry of cash in a book is*competent proof."*^ 45. Davis V. Sandford, 9 Alkn (Mass.) 216; Lovelock v. Gregg 14 Colo. S3; Richardson v. Emery, 23 N. H. 220; Wilson v. Wilson, 6 N. J. L. 114; Harmld v. Smith, 107 Ga. 849, 33 S. E. R. 640. 46. Deimel v. Brown, 35 111. App. 303, 136 III. 586. 47. Weigle v. Brantigan, 74 III. App. 285. 48. 1 Whart., Evid., § 684. 49. Kibbe v. Bancroft, 11 111. 18. ACCOUNT-BOOK ENTRIES 1 57 § 14. Entries in a separate book. — To be ad- missible in evidence entries of accounts must be made in the regular course of business in. books kept for that purpose. " A book which shows on its face that it was not one of entries in the reg- ular course of business, but was a separate book containing no charges except against the defend- ant is not admissible as a book of original en- tries. The regularity of the account as to its place in the ordinary books of the business is as necessary as its regularity in other respects, and the book, failing in that requirement must be f-ejected.''^'' § 15. When ledger also admissible. — Where the entries in the first instance are made in the day- book and subsequently posted in the ledger, and the book of original entry is introduced in evi- dence, the ledger is also admissible, provided the party who made the entries testifies that those contained in the ledger are correct transcripts of those contained in the day-book. Moreover, it is prejudicial error for the trial court to reject the ledger." And where the entries are, in the_ first instance, made in the ledger it is then a book of original entry and, of course, tlie entries are admissible. Furthermore, where the day-book contains check-marks indicating that the entries have been transcribed in the ledger the latter must be produced for the benefit of the adverse 50. IH re Fulton's Estate, 178 Pa. St. 78; Corning v. Ashley, 4 Denio (N. Y.) 354. 51. Stickle V. Otto, 86 111. 161. 158 THE LAW OF EVIDENCE party. ^^ And where the day-book has been de- stroyed accidentally the entries contained there- in may be proved by introducing the ledger.^' § 16. Entries usable to refresh memory. — Whether the entries are admissible in evidence or not they may be used to refresh the memory of the witness. Moreover, thd fact that the tes- timony is thus supported tends to give it more weight.^* CHAPTER XIV. Entries Made in the Regular Course of Business by Strangers to the Parties to the Suit. § I. In general. — As stated in the chapter next preceding, entries of this class are separate and distinct from account-book entries. As regards the latter the party who made the entries is usually alive and in court ; but in the cas6 of the former entries he is not. Moreover, entries of the former class are admissible when made by strangers to the parties to the suit, while in the case of account-book entries, they are not. § 2. Basis of admissibility. — The chief basis of admissibility of this class of hearsay testi- 52. Prince v. Swett, 2 M^ss. 569. 53. Chatanga, Ore. & I. Co. v. Blake, 144 U. S. 476; Still- water V. Fairwell, 64 Vt. 286; McCrady v. Jones, 36 S. C. 136. 54. Robinson v. Smith, 111 Mo. 205. ENTRIES MADE BY STRANGERS 1 59 mony is necessity. As said by Justice Story, " It is the best evidence the nature of the case admits of. If the^party is dead, we cannot have his per- sonal examination under oath, and the question then arises whether there shall be a total failure of justice, or secondary evidence shall, be ad- mitted to prove facts where ordinary prudence cannot guard us against the efifects of human mortality."^ Another, ground of admissibility is the trustworthiness of this class of testimony. As said by Parker, C. J., " What a man has said when not under oath may not, in general, be given in evidence when he is dead. . . But what a man has actually done and committed to writing, when under obligation to do the act, it being in the course of business he has under- taken, and he being dead, there seems to be no danger in submitting to the consideration of the jury."^ § 3. Must be made soon after transaction. — The entries must be . made in the due course of business. If they constitute a mere recital of a past transaction they are inadmissible. On the other hand, the fact that temporary memoranda are made at the time of the transaction and svib- sequently transcribed in a book of record will not render the latter inadmissible, provided the memoranda a:re transcribed within a reasonable time.^ 1. NichoUs V. Webb, 8 Wteat. (U. S.) 326. 2. Welsh V. Barrett, IS Mass. 380. 3. C. & A. Ry. Co. v. S.trawboard Co., 190 111. 268 (In 'this l6o THE LAW OF EVIDENCE § 4. Not essential that entry be made in the performance of a duty required by law. — Ac- cording to some of the English decisions the entry must be made in the performance of a duty required by law.* According to others it seems to be sufficient if made in the performance of a duty either to the public or to a private em- ployer. As said by Lord Denman, " the entry must be against the interest of the party who writes it, or made in the discharge of some duty for which he is responsible."^ In this country the rule seems to be more liberal. It is not es- sential that the entry be made in the perform- ance of a duty required by law.® It is usually sufficient if made in the regular course of busi- case the plaintiff was allowed to introduce in evidence eighteen " stack sheets " containing entries transcribed from scale tickets each of which stated the weight of a load of straw.). , 4. Chambers v. Bernascorii et al., 1 C. & J. 451 (In this case a sheriff had stated in his return the place where the arres-t Tvas made. As this -was no part of his duty the entry was held inadmissible.) ■5. Reg. V. Inhab. of Worth, 4 Add. & E. 132. See also Massey v. Allen, L. R. 13 Oi. Dw. S58, S62 (In this case entries by a broker' were rejected because not made in the course of a duty.). 6. Kennedy v. Doyle, 10 Allen (Mass.) 161 (In this case an entry relating to a baptism by a Roman Catholic priest was held inadmissible). See also, Inhab. of Augusta v. Inhab. of Windsor, 19 Me. 317; Evanston v. Gunn. 99 U. S. 660 (In this case records kept by a person in the employ of the_ United States sigqal service were held admissible.). ENTRIES MADE BY STRANGERS l6l ness, irrespective of any special duty in regard to it. § s. Requisite of death of party who made the entry. — According to the English rule, to render this class of testimony admissible the party who made the entry must be dead.'^ This rule has been recognized in this country. As said in a Pennsylvania case, " It has Recently been settled that the memorandums, made at the time, by a person in the ordinary course of business, of acts and matters which his duty in such business re- quired him to do for others, are admissible evi- dence of the acts and matters so done after death. But if he is living he must be called."^ The mod- ern American rule, however, is more liberal. Even in some of the early decisions the courts recognized insanity,^" and the fact that the party had absconded," as sufficient. § 6. Personal knowledge of party who makes the entry. — According to some decisions one of the requisites of admissibility of this class of testimony is personal knowledge of the party 7. Price v. Torington, 1 Salk. 28S ; Polini v. Gray, 12 Ch. Div. 411, 429, 430; Sturla v. Freccia, 5 App. Cas. 623. 8. Farmers' Bank of Lancaster v. Whitehill, 16 Serg. & R. (Pa.) 89. 9. Mayor, etc., of New York v. Ry. Co., 102 N. Y. 572, 7 N. E. R. 90S, SS Am. Rep. 839 ; Perkins v. Ins. Co., 10 Gray (Mass.) 323, 71 Am. Dec. 654; Shove v. Wiley, 18 Pick. (Mass.) 5S8. See also note to Price v. Torrington in Smith's Lead. Cas. 572. 10. Union Bank v. Knapp, 3 Pick. (Mass.) 96, IS Am. Dec. 181. ID2 THE LAW OF EVIDENCE who makes the entry. Thus, Justice Fields says, " that rule, with some exceptions, not including the present case, requires, for the admissibility of the entries, not merely that they shall be con- temporaneous with the facts to which they re- late, but shall be made by parties having per- sonal knowledge of the facts, and be corrobor- ated by their testimony if living and ac- cessible."^^ § 7. Oral statements not within the exception. — According to the English rule this class of testimony includes oral statements. Thus, in the celebrated Sussex Peerage Case, Lord Campbell says, " By the law of England the declarations of deceased persons are generally not admissible unless they are against the pecun- iary interest of the part)' making them. There are two exceptions : First, where a declaration, by word of mouth or by writing, is made in the course of business of the individual making it, there it may be received in evidence, though it is not against his interest. "^^ But according to a modern English case-^* there seems to be a ten- dency to narrow the scope of this rule. In this 11. North Bank v. Abbott, 13 Pick. (Mass.) 466, 25 Am. Dec. 334. 12. Chaffee v. United States, 18 Wall. (U. S.) 540, 541. 13. 11 Clark & F. 85. 14. Dawson v. Dawson, 22 T. L. R. 52. See also 19 Harvard Law Review for comment on this case. PHYSICAL OR MENTAL CONDITION 1 63 country this class of testimony is confined to statements in writing.^^ IS. Manning v. Sdi. Dist., 124 Wis. 84, 102 N. W. R. 356; Equit. Mfg. Co. V. Howard, 140 Ala. 252, 37 So. R. 106. CHAPTER XV. Declarations Relating to the Physical or Mental Condition of the Declarant or to His Intention. §1. In general. — Spontaneous exclamations of pain which instinctively accompany it and de- scriptive statements of pain are separate and dis- tinct classes of testimony. The former are cir- cumstantial original evidence, while the latter are hearsay. This important distinction, while recognized by all the authorities,^ is frequently overlooked. § 2. Spontaneous exclamations always admis- sible. — When materia] to the issue spontaneous exclamations are always admissible. As said by Mitchell, J., " Exclamations and expressions of the latter kind are the natural language of pain ; and whenever its existence at any particular time is a relevant fact such manifestations of it are always admissible as original evidence under the ordinary application of the rule of res gestae. They are in the nature of verbal acts, and may 1. Roche V. Ry. Co., 105 N. Y. 294, 11 N. E. R. 630; Wil- liams V. Gt. North. Ry. Co., 68 Minn. 55. 164 THE LAW OF EVIDENCE always be testified to and described by any per- son in whose presence they were uttered."^ And as said by Dr. Greenleaf, " Whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feel- ings, made at the time in question, are also original evidence. If they are the natural lan- guage of the affections, whether of the body or the mind, they furnish satisfactory evidence, and often the only proof of its existence; and whether they were real or feigned is for the jury to determine."''' § 3. Descriptive statements by the injured party. — As to the admissibility of descriptive statements by the injured party the decisions are not harmonious. This exception to the rule against hearsay was reluctantly adopted and generally it has been applied with caution. Some courts hold that the descriptive statements to be admissible must be made to the medical attend- ant;* while others hold the contrary.* Mitchell, J., says that the former view is supported by the great weight of modern authority.* The ten- dency seems to restrict rather than to enlarge the 2. Williams v. Gt. North. Ry. Co., supra. - 3. Greenl., Evid. § 102. 4. Williams v. Gt. Niorth. Ry. Co., supra; Lake St. Ele- vated Ry. Co. V. Shaw, 203 111. 39 ; West Chicago St. Ry. Co. V. Kennelly, 170 111. 508; Kellar v. Gilman, 93 Wis. 9. 5. Brown v. M.t. Holly, 69 Vt. 364"; State v. Fourniier, 68 Vt. 262; Atclh. Ry. Co. v. Johns, 36 Kan. 769; St. Louis Co V. Burrows, 62 Kan. 89, 61 Pac. R. 439. 6. Williams v. Gt. North. Ry. Co., supra. PHYSICAL OR MENTAL CONDITION 1 65 scope of admissibility of this class of testimony. The modern cases on this subject go back to the English case of Aveson v. Kinnaird et al. in which a very liberal rule was applied. § 4. Basis of admissibility of descriptive state- ments relating to pain. — The basis of admissibil- ity of this class of testimon)' is necessity. Upon this point Swayne, J., says, " These expressions are the natural reflexes of. what it might be im- possible to show by other testimony."* Camp- bell, J., says, "It would be impossible in most cases to know the existence, extent, or character of pain without them."^ And Denis, J., says, " I think such evidence is admissible from the neces- sity of the case."" § 5. Aveson v. Kinniard et al. — In this case an action was brought on an insurance policy on the life of Mrs. Aveson. Statements made by her, while lying in bed at ii o'clock a. m., that she was very poorly; that she had been to Man- chester the Tuesday before ; that her husband had been insuring her life; that she was not well when she went, etc., were held admissible. ^^ § 6. Statements must be contemporaneous with the pain. — As a general rule the statements 7. 6 East 188. 8. Ins. Co. V. Mosley, 8 Wall. (U. S.) 397. 9. Grand Rapids & I. Ry. Co. v. Huntley, 38 Mich. S43. 10. Caldwell v. Murphy, 11 N. Y. 419. See also, Elmer v. Fessenden, .151 Mass. 359; Lush v. McDaniel, 13 Ired. (N. C.) 487; Sugden v. Lord St. Leonards, L. R. P. D. 154. 11 6 East 188. l66 THE LAW OF EVIDENCE must be contemporaneous with the pain. State- ments that are a mere riarrative of past condi- tions are too untrustworthy to be admissible. ^^ It has been held, however, that where the state- ments are made to the attending physician they rriay relate to past conditions as well as present. Thus, Endicott, J., says, " While a witness not an expert can testify only to such exclamations and complaints as indicate present existing pain and sufifering, a physician may testify to a state- ment or narrative given by his patient in relation to his condition, symptoms, sensations, and feel- ings, both past and present."^* § 7. Expert opinion admissible. — While re- citals of past suffering, whether made to the at- tending physician or to some other person, are generally inadmissible, expert opinion testimony based upon them is admissible. Moreover, the expert opinion may be partly based upon state- ments made by the injured party relating to past suffering.^* Some courts, however, seem to doubt the correctness of this view.-^'"" 12. Lush V. McDaniel, supra; Bacon v. Charlton, 7 Cush. (Mass.) 581; Keley v. Detroit Ry. Co., 80 Mich. 237, 20 Am. St. Rep. 514; Roach v. West. & A. Ry. Co., 93 Ga. 785. 13. Roosa V. Boston Loan Co , 132 Mass. 439. 14. Salem v. Webster, 192 111. 369, 61 N. E. R. 323 ; Omberg V. Ins. Co., 101 Ky. 303, 40 S. W. R. 909, 72, Am. St. Rep. 413; Broyles v. Priscock, 97 Ga. 643, 2S S. E. R. 389; Chapin v. Marlborough, 9 Gray (Mass.) 244. 15. Lush V. McDaniel, supra; Abbott v. Heath, 84 Wis. 314; Rogers v. Grain, 30 Tex. 284; Poncha v. Crawford, 18 Neb. 551. PHYSICAL OR MENTAL CONDITION 1 67 § 8. Testimony of cause of injury inadmissible. — Declarations made after the injury, and which relate to the ^ cause of it, are inadmissible. As said by Lawrence, J., " to permit a party to prove what he himself stated to his physician, not in regard to the character and manifestations of his malady, but in reference to its specific cause, when that is one of the issues before the jury, would be carrying an acknowledged de- parture from the ordinary rules of evidence, having its origin in necessity, to a most danger- ous extent."^" Thus, it was held prejudicial error to admit a statement, made by the plaintiff to his attending physician, that he had been struck by a horse. ■^'^ But declarations made contempo- raneously with the injury, and which relate to the cause of it, are admissible. In such case they constitute part of the res gestae and are original evidence.'^ This class of testimony is frequently spoken of as verbal acts. § 9. Declarations by attending physician to patient inadmissible. — Statements by the attend- ing physician to his patient, as to the nature of the injuries; are inadmissible.^^ And statements 16. 111. Cent. Ry. Co. v. Sutton, 42 111. 438. See also, Mor- risey v. Inghajn, 111 Mass. 63; Smith v. State, S3 Ala. 486; State v. Gedicke, 43 N. J. L. 86; Fordyce v. Mc- Cauts, 51 Ark. 509, 14 Am. St. Rep. 69. 17. Chapin v. Marlborough, supra. 18. Del., L. & W. Ry. Go. v. Ashley, 67 Fed. R. 209. 19. Alabama Ry. Co. v. Arnold, 81 Ala. 600; Armstrong v. Ackley, 71 la. 76. 1 68 THE LAW OF EVIDENCE by the attending physician to another physician, as to the nature of the injuries,, not made in the presence of the injured person, are also inad- missible.^" § lo. Some important discriminations. — The admissibility of declarations relating to the physical or mental condition of the declarant may depend upon either the time, relatively speaking, at which the declarations are made, or the purpose for which they are offered. Thus, statements of presently existing sensations of pain, or of the location or seat of it, are admiss- ible; whereas statements of past conditions, of- fered to prove the truth of the statements, are inadmissible. But if the purpose of the latter statements is merely to constitute the basis of expert opinion testimony they are admissible in the discretion of the court. And, as previously stated, if the exclamations are spontaneous utterances of present pain they are circumstan- tial original evidence and admissible as such to prove both the existence of the pain and the location of it. § II. Declarations indicating intention, mo- tive or state of mind. — When a person's inten- tion, motive or state of mind is material to the fact in issue, statements made by him contem- poraneously with the existence of such intention, motive or state of mind are admissible. ^^ Some 20. Poncha v. Crawford, supra. 21. Com. V. Trefethen, 157 Mass. 185; Banfield v. Parker, 36 N. ri. 353; Roesner v. Darrah, 65 Kan. 599, 70 Pac. PHYSICAL OR, MENTAL CONDITION 169 courts^ how;ever,, hold that a declaration of in- tention, to be admissible, must accompany and characterize some act which is legally relevant to the litigation. ^^ This view, however, is erron- eous. If the declaration is contemporaneous with the intention, and the latter is material to the fact in issue, the declaration is admissible^ irrespective of the fact that it is made prior to the happening of the event to which it relates.^^ This principle is also applicable where feelings of affection, emotion, prejudice, malice, etc.,' are material to the fact in issue. ^* And it would seem that it should be applied to show either the affirmative or negative of these feelings ; but some courts refuse to apply it to show the nega- tive on the ground that it would " allow a party to make evidence for himself. "^^ This class of R. 597; Laurence v. Laurence, 164 111. 367, 45 N. E. R. 1071 ; Horner v. Yance, 93 Wis. 352, 67 N. W. R. 720. 22. Siebert v. People, 143 111. 571, 585 ; Chicago, etc. Ry. Co. V. Chancellor, 165 111. 438; State v. Wood, 53 N. H. 484, 494; Lake Shore Ry. Co. v. Herrick, 49 Ohio St. 25. 23. Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285; Com. v. Trefethen, supra (overruling Com. v. Felch, 132 Mass. 22). 24. Com. V. Holmes, 157 Mass. 233, 32 N. E. R. 6; Willis v. Bernard, 5 Car. & P. 342; Gaines v. Relf, 12. How. (U. S.) 472, 520, 534; Baiky v. Bailey, 94 la. 629, 63 N. W. R. 341 ; Lockwood v. Lockwood, 67 Minn. 476, 70 N. W. R. 784; Driver v. Driver, 153 Ind. 88, 52 N. E. R. 401 ; Laurence v. Laurence, supra. 25. Newcomb v. State, 37 Miss. 383, 398. 170 THE LAW OF EVIDENCE testimony is frequently used in actions for crim- inal conversation, divorce, etc.^^ § 12. Declarations relating to wills.^The ad- missibility of declarations oiE a testator depends largely upon the purpose for which they are of- fered. While the decisions are not altogether harmonious, the following propositions are very generally supported by the authorities. Where the fact in issue is the mental capacity of the testator to make a will declarations made by him either before, at the time of, or after exe- cuting the will, are admissible, provided those made before or after the execvition of the will are not too remote.^'' These principles also apply where the fact in issue is whether the will was procured by undue influence or not.^^ This is owing to the fact that the mental strength of the testator is in issue in every case of alleged undue influence. As said by Seldon, J., " So the mental strength and con- dition of the testator is directly in issue in every case of alleged undue influence ; and the same evidence is admissible in every such case, as in cases ,where_jiisanity or absoluteincompetency 26. Ash V. Prunier, lOS Fed. R. 722; Lockwood v. Lockwood, supra; Wright v. Tatham, S CI. & F. 683; Gilchrist v. Bale, 8 Watts, 356: Preston v. Bowers, 13 Ohio St. 1, 82 Am. Dec. 340. See also, note, 44 Am. St. Rep. 848. 27. Waterman v. Whitney, 11 N. Y. 157; Hers'ter v.Hers- ter, 122 Pa. St. 239; Lane v. Moore, 151 Mass. 87; Burns V. Mill, 121 N. ,C. 336. 28. Cases cited in foot-note 27. PHYSICAL OR MENTAL CONDITION 17! is alleged."^" Upon this point Mr. Jarman says, " The amount of undue influence which will be sufficient to invalidate a will must of course vary with the strength or weakness of the mind of the testator/'^" Where the will is disputed on the ground of fraud, duress, or some similar cause other than mental weakness or undue influence of the testa- tor, only declarations made contemporaneously with the execution of the will are admissible ;^^ except that where the testator's mental condi- tion is legally relevant, declarations made hy him before and after the execution of the will are admissible to prove or disprove this issue. ^^ Upon this point Seldon, J., says, "where the . . . will is disputed on the ground of fraud, duress,, mistake, or some similar cause, aside from the mental weakness of the testator, I think it equally clear that no declarations of the testator himself can be received in evidence except such as were made at the time of the execution of the will, and are strictly a part of the res gestae. ^^ And Professor Wigmore says, " The testator's assertion that a person, named or unnamed, has procured him by fraud or pressure to execute a- will or to insert a provision, is plainly obnoxious 29. Waterman v. Whitney, supra.' 30. 1 Jarman on Wills, 36. 31. Waterman v. Whitney, supra. ■32. Grant v. Thompson, 4 Conn. 203 ; Herster v. Herster,. supra. 33. Waterman v. Whitney, supra. 172 THE LAW OF EVIDENCE to the hearsay rule, if offered as evidence that the fact asserted did occur. . . For this reason they (such declarations) are by most courts re- garded as inadmissible . . . But these utter- ances may be, nevertheless, availed of as evi- dence of the testator's mental condition, if the latter fact is re'Ievant."^^* Where the fact in issue is whether a certain will has been revoked or not only those declara- tions that are contemporaneous with the alleged act of revocation are admissible. ^^ Thus, where a wjll is found in a fireplace partly burnt, and the question is quo aninw of the testator, .only those declarations which form part of the res gestae are admissible. Where the question in issue is whether cer- tain alterations in a will were made before or after the execution of the will, declarations of intention made by the testator before the execu- tion of the will, and which tend to show that the alterations were made prior to the execution of the will, are admissible.*" Where the question in issue is the contents of a lost will, declarations by the testator made at the time of executing the will, and those made 34. Wigmore on Evidence, Vol. Ill, § 1738. 35. Waterman v. Whitney, supra; Bibb v Thomas, 2 Wm. Blackstone 1044; Dan v. Brown, 4 Cowen (N. Y.) 483; Doe V. Perkes et ah., 3 Barn. & Aid. 489. 36. Doe d. Shalkross v. Palmer, 16 Q. B. D. 747; Behreos, 47 Ohio St. 323 ; Sugden v. Lord St. Leonards, 1 Prob. Div. 154. PHYSICAL OR MENTAL CONDITION 1 73 before the execution of the will are admissible.^'' But those made after the execution of the will are not admissible ; except that, where there is direct evidence of the contents of the lost will such post-testamentary declarations are admiss- ible to corroborate the direct testimony.^* § 13. Case of Throckmorton v. Holt. — In the case of Throckmorton v. Holt*^ the supreme court of the United States hold that ante-testa- mentary declarations of a testator are not ad- missible to prove the contents of a lost will; that there is no good ground for distinguishing be- tween ante-testamentary and post-testamentary declarations ; and that these views accord with the weight of authority. In support of these views it cites only Stevens v. Vancleve, 4 Wash. C. C. 262. Three members of the court dissent. The majority opinion in the case is clearly erron- eous on both points. 37. Sugden v. Lord St. Leonards, supra; Gardner v. Gardner, 177 Pa. St. 218; Gordon v. Burris, 141 Mo. 602; Wilton V. Humphreys, 176 Mass. 253. 38. Quick V. Quick, 3 Sw. & Tr. 442; Sugden v. Lord St. Leonards, supra; Woodward et al. v. Ooulstone et al., 11 H. of L. Cas. 469; Clark v. Turner, SO Neb. 290'; in re Pag€, 118 IIJ. 576, 8 N. E. R. 852; in re Lambie's Estate, . 97 Mioh. 49. 56 N. W. R. 223 ; Clark v. Morton, S Rawle (Pa.) 235; Mercer's Administration v. Mackin, 14 Bush. (Ky.) 434; Lea v. Cooper Co., 21 How. (U. S.) 493. 39. 180 U. S. 552. 174 THE LAW OF EVIDENCE CHAPTER XVI. Declarations Forming Part of, or Relating to, the Res Gestae. § I. In general. — The term res gestae means things done. In the law of evidence it had its origin in Home Tooke's trial for high treason in 1794.-^ Originally, however, it was used in the singular form. But in the case of Aveson v. Kin- naird^ it was freeh' Used in the plural form. In the decisions of this country it was first used in Massachusetts in 1808.^ § 2. Vague use of the term. — The vague use of the term" res gestae/' in the law of evidence, has been frequently commented upon. Professor Thayer says, " We have seen that the singular form of phrase soon began to give place to the plural; this made it considerably more conven- ient; whateveir multiplied its ambiguity multi- plied its capacity; it was a larger 'catch-all.' To be sure, this was a dangerous way of finding relief, and judges, text-writers, and students have found themselves sadly embarrassed by the growing and intolerable vagueness of the ex- pression."* Dean Wigmore says, " There has been such a confounding of ideas, and such a profuse and indiscriminate use of the shibboleth res gestae that it is perhaps impossible to disen- 1. 2S Howell's State Trials 440. 2. 6 East 188. 3. Bartlett v. Delprat, 4 Mass. 702. 4. Amer. Law Rev., XV., 5, 81. DECLARATIONS AS TO RES GESTAE 1 75 , tangle the real basis of principle involved."" And Beasley, C. J., says, " I think I may safely say that there are few problems in the. law of evi- dence more unsolved than what things are em- braced in those occurrences that are designated in the law as the. res gestae."^ § 3. The general rule. — Spontaneous utter- ances, made immediately upon the happening of some principal transaction materially relevant to the issue, which are influenced by it, and which limit, characterize or explain it, constitute declarations which form part of, or relate to, the res gestae, and are admissible in evidence. If, however, they constitute a mere narrative of a past occurrence they are inadmissible. § 4. Verbal acts. — Declarations which possess the attributes stated in § 3, and which are strictly contemporaneous with the principal transaction, form a part of the res gestae and are original evidence. Such declarations are verbal acts and the rule against hearsay does not apply to them. As said by Fletcher, J., " when the act of a party may be given in evidence, his declarations made at the time, and calculated to elucidate and ex- plain the character and quality of the act, and so connected with it as to constitute one transac- tion, and so as to derive credit from the act itself, are admissible in evidence."''^ 5. Wigiiiore on Evid., Vol. III., § 174S. ■6. Hunter v. State, 40 N. J. L. S36. 7. Lund V. Tyngsborough, 9 Cush. ( Mass.) 42. 176 THE LAW OF EVIDENCE § 5. Scope of verbal acts. — Verbal acts consti- tute either a part of the issue, a part of an act which is material to the issue, or circumstantial evidence of an existing condition. § 6. Action for slander or libel. — In an action for slander or libel the alleged statement consti- tutes part of the issue and is original evidence. As said by Doster, C. J., "The rule is general that, where a substantive litigated fact is the speech of a person, one who heard the utterance is admitted to testify to it, and the testimony so received is not hearsay."^ § 7. Action for malicious prosecution. — In an action for malicious prosecution, where the de- fendant sets up that in bringing the former ac- tion against the present plaintiff he did so based upon information received by him from some third person, the statements made to him by the third person in such case are original evidence and admissible as such. They are not offered for the purpose of proving the truth of the state- ments, but merely to show the information upon which the present defendant acted in bringing the former action against the present plaintiff. As said by Eastman, J., " It does not follow that, because the wqrds in question are those of a third person, they are necessarily hearsay. On the contrary, it happens in many cases that the very fact in controversy is whether such things were spoken and not whether they are true."^ 8. State Bank v. Hutchinson, 62 Kan. 9. 9. State V. Wentworth, 37 N. H. 217. DECLARATIONS AS TO RES GESTAE 1 77 § 8. Excellent illustration of the principle in the Harry K, Thaw murder trial. — In the cele- brated Harry K. Thaw murder trial the defend- ant admitted killing Stanford White and set up insanity as a defense. His counsel offered in evidence certain letters written to him by his wife, Evelyn Thaw, and which contained state- ments of immoral conduct toward her by White. These letters were objected to by the 'prosecu- tion on the ground that to admit them would constitute a violation of the rule against hearsay. The trial court correctly ruled, however, that the letters were admissible, since they were offered not to prove the truth of the statements con- tained in them but to show their inherent ten- dency to create a " brain storm " in the mind of the defendant. § 9. Statements which accompany an act which is material to the principal fact in issue. — Statements which accompany an equivocal act which is independently material to the issue, and which statements limit, characterize or explain it, are verbal acts and admissible as original evi- dence. As said by Clifford, J., " Declarations of a party to a transaction, though he was not un- der oath, if they were made at the time any act was done which is material as evidence in any issue before the court, and if they were made to ■ explain the act, or to unfold its nature and qual- ity, and were of a character to have that effect, are treated in the law of evidence, as verbal acts, and, as such, are not hearsay, but may be intro- 178 ' THE LAW OF EVIDENCE duced, with the principal act which they accom- pany and to which they relate, as original evi- dence, because they are regarded as a part of the principal act, and their introduction in evidence is deemed necessary to define that act and unfold its true nature and quality."^" Thus, where a person charged with the larceny of goods found in his possession makes statements which tend to characterize or explain such possession, his statements are verbal acts and admissible as original evidence. ^^ And generally, statements by a person in possession of propertj'^, which characterize the nature of such possession, whether as owner or otherwise, are verbal acts and admissible as original evidence. This prin- ciple has been also applied to declarations by al- leged bankrupts ;^^ to declarations by a testator which characterize his act in destroying his will to show whether the act was intentional or ac- cidental ; to declarations which characterize the acts of a person involving the question of his domicil,^* and to declarations by a debtor which 10. Ins. Co. V. Mosley, 8 Wall. 411. 11. Comfort V. People, 54 111. 404. 12. Rawson v. Haigh, 9 J. B. Moore 217 ; Robson et al. v. Kemp et al., A Esp. 233. Bateman v. Bailey, S T. R. 512; Thomas v. Cormell, 4 M. & W. 267; Smith v. Cramer, 1 Bing. (N. C.) 585. 13. Bigelow V. Bear, 64 Kan. 887, 68 Pac, R. 73; Matzen- baugh V. People, 194 111. 108, 62 N. E. R. 546; Kilburn v. Bennett, 3' Mete. (Mass.') 199; Cornville v. Brighton, 39 Me. 333. DECLARATIONS AS TO RES GESTAE 1 79 characterize his apts involving the question as to whether he has absconded or not.^* § 10. Utterances which are circumstantial evi- dence of an existing condition. — Declarations which show indirectly an existing condition are admissible as original evidence. They are used inferentially and not testimonially. The rule against hearsay is applicable only to statements used testimonially. This important proposition, however, is sometimes overlooked. When a person's intention, rnotive, purpose or state of mind, is material to the issue, contemporaneous statements by him, which characterize such con- dition, are circumstantial original evidence. As said by Colt, J., " Intention, purpose, mental pe- culiarity and condition, are mainly ascertainable through the medium afforded by the power of language. Statements and declarations, when the state of mind is the fact to be shown, are therefore received as mental acts or conduct. The truth or falsity of the statement is of no consequence. As a narration, it is not received as evidence of the fact stated. It is only to be used as showing what manner of man he is who makes it."^^ § II. Spontaneous declarations which relate to the principal transaction, but which are not verbal acts. — Spontaneous utterances which are strictly contemporaneous with the acts of which they form a verbal part are original evidence and 14. Brady v. Parkes, 67 Ga. 636. 15. Shailer v. IBumstead, 99 Mass. 112. l8o THE LAW OF EVIDENCE admissible as such. But spontaneous utterances which are made after the acts occur to which they relate are hearsay. These utterances are, however, admissible in evidence, provided they are not narratives of past occurrences. To be admissible they must be the natural, instinctive and spontaneous utterances of the declarant, re- sulting from nervous excitement produced by external manifestations, and made by him under circumstances which show that his reflective fac- ulties at the time are, generally speaking, dor- mant. If the declarant has had sufficient time and opportunity to premeditate and deliberate, so as to enable him to frame 'statements in his own interest, the declarations are inadmissible. In applying this rule, however, there is a wide margin in the decisions. Some courts apply the rule strictly, while other courts do not. § 12. Lord George Gordon's Case. — In this celebrated case, in which Lord George Gordon was tried for treason, declarations of the mob which accompanied him when the alleged acts were committed were held admissible to prove the treasonable nature of the acts.-^® § 13. Case of Regina v. Beddingfreld. — In this celebrated murder case a statement by the vic- tim charging defendant with the act of cutting her throat, made by her while running from the room in which the act occurred, was held inad- 16. 21 Howard St. Tr. 514. DECLARATIONS AS TO RES GESTAE ibl missible,^'^ The statement in this case was prob- ably made not more than a minute or so after the deed was done and only a minute or two be- fore the victim died. The ruling in this case has been frequently commented upon and severely criticised; and Cockburn, L. C. J., published a pamphlet in which he defended his ruling. The case, however, is very generally considered an extreme one. § 14. Case of Ins. Co. v. Mosley. — In this case the supreme court of the United States went to the other extreme. The action was brought on an accident policy. To prove that the deceased's death was accidental, statements by him that he had fallen down stairs, made to his wife and son after he had returned to his room, were held ad- missible.^^ There were no marks on the body of the deceased, and, for aught that appears, half-an-hour or more may have elapsed- between the alleged accident and the making of the state- ments. § 15. Case of Mutual Life Ins. Co. v. Hillmon. — In this case an action was brought on a life insurance policy and the insurance company claimed that the body found on the praries was not the body of the assured. To prove that it was not, certain letters which expressed an in- tention on the part of the writer — one Walters — to leave the place at which he was staying, with- 17. 14 Cox Cr. Ca. 341. See 14 Am. Rev. 817 for criticisms of the decision in this case. 18. 8 Wall. (U. S.) 397. l82 THE LAW OF EVIDENCE in a day or so, and go with a Mr. Hillmon (the assured) to another place in a different state, were exchided by the trial court, and this rul- ing was held prejudicial error. If the declarant's intention was a fact material to the issue, con- temporaneous declarations by him of that inten- tion were admissible. Moreover, the declaration by him that a certain Mr. Hillraon was to accom- pany him was also admissible, assuming that the fact stated was material to the issue. ■'■^ As said by Beasley, C. J., " If it is legitimate to show by a man's own declarations that he left his home to be gone a week, or for a certain destina- tion ... why may it not be proved in the same way that a designated person was to bear him company? At the time the words were ut- tered or written they imported no wrong doing to any one, and the reference to the companion who was to go with him was nothing more, as matters then stood, than an indication of an ad- ditional circumstance of his going. If it was in the ordinary train of events for this man to leave word or to state where he was going, it seems to me it was equally so for him to say with whom he was going."-" § i6. Case of McCarrick v. Kealy. — In this case the plaintiff sued for damages caused by defendant's dog biting her; and the trial court admitted in evidence a declaration of the plain- tiff, made to her mother within five minutes 19. US U. S. 285. 20. Hunter v. State, 40 N. J. L. 49S. DECLARATIONS AS TO RES GESTAE 183 from the time she was injured, and as she was entering her parents' house, crying, that "Kealy's dog has bitten me." This was held prejudicial error. As said by Hall, J., " Proof of the fact that she was crying or complaining of pain, would have been admissible to show that she was then suffering, but not her statement of the cause of the pain. To render such a declaration admissible as a part of the res gestae it must characterize or explain some material act or oc- currence, which it accompanies. The res gestae, the occurrence, which was material, was the act by which the plaintiff was injured. Her declara- tions made while the injuries were inflicted, were a part of that occurrence, and if they character- ized or explained it would have been admissible. If not made during the continuance of the act,, but after the act by which she was injured had been completed, they were but a narrative of a past event; and evidence of such declarations wa,s objectionable as hearsay. "^^ §17. Declarations of bystanders. — Declara- tions of bystanders, which characterize the fact in issue, and which are made, contemporaneously with it are admissible in evidence as forming part of the res gestae. Thus, in a celebrated case in which an action of trespass was brought for de- stroying a valuable painting, entitled La Belle et la Bete (Beauty and the Beast), which was on exhibition by the plaintiff who was an artist, the 21. 70 Conn. 642, 645. 184 THE LAW OF EVIDENCE defendant claimed that it was a libel on his sis- ter; and Lord Ellenborough held that the declar- ations of the spectators, which supported the de- fendant's claim, and which were made while they were looking at the painting, were admissible to show that the figures portrayed were meant to represent the defendant's sister and brother-in- law.^^ On the other hand, the mere fact' that a bystander makes a statement relating to a cer- tain condition or occurrence, contemporaneously with it, does not render the statement admis- sible.^,® In Du Bost's case the declarations relat- ing to the painting were made by the spectators generally. § 18. Declarations of agfents. — The decla- tions of agents are frequently held admissible on the ground that they form part of the res gestae, whereas in many cases they do not. Statements by agents which relate to past facts are no part of the res gestae; and yet they may be legally relevant. Their admissibility depends upon rules of agency, and the rule against hearsay is not in- volved at all. If the statements are made within the scope "of the agency they are binding on the principal ; and if material to the issue they are admissible.^* The fact that they are made a 22. Du Bost V. Beresford, 2 Camp. 511. See also, Chase v. Lowell, ISl Mass. 422; Schulze v. Jalonick, 74 Tex. Civ. Appp. 656, 660; Knapp v. Fuller, 55 Vt. 311; Galena & C. U. Ry. Co., 16 111. 558, 568. 23. Fairke v. Hastings, 10 Ves. 123, 127; Seaboard Air Line Ry. V. Hubbard, 142 Ala. 546, 38 So. R. 750. DECLARATIONS AS TO RES GESTAE 185 considerable length of lime after the facts as- serted occurred is immaterial. Much confusion and vagueness exist in the decisions owing to the fact that the admissibility of this class of declara- tions is often erroneously based upon the res gestae doctrine.^* Declarations of an agent are not admis- sible to prove the relation of agency.^^ § 19. Declarations of prosecutrix in a rape case. — This is another field in which many courts have applied the res gestae doctrine erroneously.^® Declarations made by the prosecutrix after the of- 24., U. S. V. Gooding, 12 Wheat. (U. S.) 460,. 6 L. ed. 693; Adams v. Hannibal & St. J. R. Co., 74 Mo. SS3, SS6, 41 ■Am. Rep. 333; BecWith' v. Mace, 140 Mich. 157, 103 N. W. R. SS9; Bigley v. WiUiams,' 80 Pa. St. 107, 116; ■North. Pac. Ry. Co. v. Kempfonv 138 Fed. R. 992, 71 C. C. A. 246, White v. Miller, 71 N. Y. 118, 134, 27 Am. Rep. 13 ; Rahni v. Deig, 121 Ind. 283 ; Shafer v. Lacock, ;168 Pa. St. 497; Cook v. Hunt, 24 111. 535; Jones v. Jones, 120 N. Y. 589; Vicksburg & M. Ry. Co. v.. O'Brien, 119 tr. S. 99. Gatt v. Uinsmore, 111 Mass. 45. 25. White V. Miller, supra (In this case Andrews, J., says, "The general rule is that what one person says out of court is not admissible to charge or bind another. The exception is in cases of agency; and in cases of agency declarations of an agent, are not competent to charge the principal mere- ly that the ir'elati'on of principal and agent existed when the declarations were made. ' It must further appear that the agent, at the time the declarations were made, was engaged in executing the authority conferred upon ■ him, and that the declarations related to and were the business then depending, so that they constitute a part of the res gestae.'). 26. State v. De Wolf, 8 Conn. 99. See also State v. Neal, 21 Utah, 151, 60 Pac. R. 510. l86 THE LAW OF EVIDENCE fense has occurred are ho part of the res gestae. Nor are such declarations admissible as verbal acts. But declarations made by her contemporaneously with the offense, and which relate to it, are verbal acts and admissible as original evidence. § 20. Same. Various theories of admissibility. — As to the admissibility of declarations of the prosecutrix in a rape case, made after the com- mission of the offense, various theories have been advanced. One theory is they are admis- sible to explain a self-contradiction. Another is they are admissible to corroborate other evi- dence given by the prosecutrix. And still an- other is they are admissible as spontaneous dec- larations. Under the first theory they are held admissible to rebut the natural presumption that would arise from silence on her part, and which woud tend to impeach her. As said by Daggett, J., " If a female testifies that such an outrage has been committed on her person, an inquiry is at once suggested why it was not communicated to her friends. To satisfy such inquiry it is rea- sonable that she should be heard in her declara- tion that she did so complain."^® § 21. Same. Scope of admissibility. — As to the scope of admissibility of this class of declara- tions there is much conflict in the decisions. Some American cases hold that the details of the complaint, made by the prosecutrix to her mother or some other friend, are admissible;^'' 27. State V. Kinney, 44 Conn. 153 ; Burt v. State, 23 Ohio St. 394; State v. Meyers, 46 Neb. ,152. DFXLARATIONS AS TO RES GESTAE 1 87 while Others hold that only the fact that the com- plaint was made is admissible.^^ The latter view is supported by the weight of American author- ity. This view was also the early English view.^® According to the modern English rule, however, the details of the complaint are also admissible.*" § 22. The res gestae doctrine in bankruptcy cases. — The doctrine of res gestae has been also misapplied in bankruptcy cases. *^ A declaration by a bankrupt, made a month after the act of bankruptcy was committed, may be admissible, but, not at all because it constitutes a part of the res gestae. As previously stated, if a person's in- tention, at the time he declares it, is material to the issue, his declaration is admissible to show it. And this is the true ground of admissibility of declarations made by a bankrupt after the act of bankruptcy is committed, except where they are admissible as admissions. § 23. The acts of which the declarations form a part must be legally relevant. — Declarations to be admissible as part of the res gestae must be a verbal part of acts which are themselves admis- sible per se. Thus, in an action to recover dam- ages for an alleged obstruction of light by cer- 28. People v. Duncan, 104 Mich. 460; Poison v. State, 137 Ind. 519, 523; Barnet v. State, 83 Ala. 40; People v. Mayes, 66 Cal. 597; Baccia v. People, 41 N. Y. 265. 29., Reg. V. Walker, 2 Moo. & Rob. 212. 30. Reg. V. Lillyman, 2 Q. B. D. 167. 31. Ridley v. Gyde, 9 Bing. 349; Rawson v. Haigh, 9 J. B. Moore 217; Robson et al. v. Kemp et al., 4 Esp. 233. l88 THE LAW OF EVIDENCE tain alterations made by the defendant in his buildings which adjoined those of the plaintifif, declarations by prospective guests who had re- jected the rooms, alleging as a ground of their objection the darkness of the rooms, were held inadmissible. As said by O'Brien, J., " The statements and declarations of opinion received in evidence in this case were made by parties not examined upon oath, or subject to cross- examination; and, though they were accompan- ied by acts tending to show that those parties really entertained the opinions they so expressed, still their statements would not on that account be exempted from the general rule excluding hearsay evidence where the acts which they ac- companied would not be evidence per se."'^^ § 24. Modern tendency of the courts. — As re- gards the modern tendency of the courts in ap- plying the doctrine of res gestae, the authorities are not agreed. Thus, Swayne, J., says, " The tendency of recent adjudications is to extend rather than to narrow the scope of the doc- trine."^^ While Bigelow, C. J., says, " The ten- dency of recent decisions has been to restrict 32. The Gresham Hotel Co. v. Manning, Irish Rep., 1 C. L. 125. See also, Doe d. Wright v. Tatham, 5 CI. & Fin. 670; Lund v. Tyngsborough, 9 Cush. (Mass.) 36; Lane V. Bryant, 9 Gray (Mass.) 24S ; Bradford v. Cunard Co., 147 Mass. 57. These cases hold that opinion evidence cannot be introduced by reported declarations. 33. Ins. Co. V. Mosley, 8 Wall. (U. S.) 397. See also, Jack v. Life Assoc, 113 Fed. R. 49, 51 C. C. A. 36. DECLARATIONS AS TO RES GESTAE 1 89 within the most narrow limits this species of testimony."^* § 25. Case of White v. City of Marquette. — In this case declarations made an hour after the ac- cident, a mile from the place where it occurred, in response to questions, were held inadmis- sible.^^ § 26. Case of Rothrock v. City of Cedar Rapids.^Declarations relating to the place and .manner in which the plaintiff sustained her in- juries, made half-an-hour later upon her arrival at home, and while she was still suffering from the injuries and carrying the marks on her, were held admissible.*" §27. Case of Vicksburg, etc., Ry.Co.v.O'Brien. — In this case the trial court admitted in evi- dence a statement made by the engineer of the train, between ten and thirty minutes after the accident occurred, that the train was moving at the time of the accident at the rate of eighteen miles an hour. This ruling was held prejudicial error. The statement "did not accompany the act from which the injuries arose. It was in its essence, the mere narration of a past occurrence, not a part of the res gestae, — simply an assertion or representation, in the course of conversation, 34. Com. V. Hackett, 2 Allen (Mass.) 136, 140. See also, Lund V. Tyngsborough, 9 (Cush.) Mass. 36. 35. 140 Mich. 310, 103 N. W. R. 698. See also, Chretien v. Ry. Co., 113 La. Ann. 761, 37 So. R. 716, 104 Am. St. Rep. 519. 36. l28 la. 252, 103 N. W. R. 475. IQO THE LAW OF EVIDENCE as to ,a matter not pending, and in respect to which his authority as engineer had been fully exerted. "^'^ § 28. Case of Hutcheis v. Ry. Co. — The plain- tiff in this case, while in the act of falling from a street car, exclaimed, " Yes, let down the steps after I fall." This declaration was clearly ad- missible.^^ § 29. Case of Springfield, etc., Ry. Co. v. Pun- tenney. — The defendant company in this case sought to introduce in evidence a statement by a cab driver, made just after the accident, that it was all his fault. The court held, however, that it was not admissible. " The event had fully transpired, and what was said was purely nar- rative of a past transaction fully ended, and did not characterize or in any way relate to a trans- action then taking place. "^** § 30. Case of Com. v. Van Horn. — This was a murder case ; and a declaration characterizing the act, made by the victim while blood was gushing from a wound in her throat, was clearly admissible.** § 31. Case of Lander v. People. — In this case a declaration made by a third party to her com- panion, the day after the offense was committed, upon recognizing the perpetrator of the deed, 37. 1 19 U. S. 99. 38. 128 la. 279, 103 N. W. R. 779. 39. 200 111. 9. 40. 188 Pa. St. 143. OPINION EVIDENCE I9I " There goes the man," was held admissible. Also the reply of her companion, who also recog- nized him, " Yes, there he goes."*^ 41. 104 111. 248. CHAPTER XVII. Opinion Evidence. § I. In general. — As a general rule opinion testimony is inadmissible. The function of wit- nesses is to testify to facts, and the function of the jury to draw inferences from them. More- over, the latter may not draw inferences which the facts as proved do not justify.-^ " The general rule is well settled that the province of a witness- is to state facts, and that of the jury is to draw conclusions from them."^ To this rule, however, there are exceptions, both real and apparent. § 2. Apparent exceptions to the rule. — The apparent exceptions to the rule which excludes opinion testimony are statements made by non- 1. Berckmatis, 16 N. J. Eq. 122. 2. Musick V. Latrobe, 184 Pa. St. 37S, 39 Atl. R. 226. See also the same effect, Largan v. Central Ry. Co., 40 Cal. 272; Perry v. Graham, 18 Ala. 822; Con. Mut. Life Ins. Co. V. Lathrop, 111 U. S. 612, 618; Penn. Co. v. Coulan, 101 111. 93 ; City of Parsons v. Lindsay, 26 Kan. 426, 432 ; Spencer v. Ry. Co., 120 Mo. 154, 23 S. W. R. 126, 22 L. R. A. 668 ; People v. Sharp, 107 N. Y. 427, 462, 14 N. E. R. 319, 1 Am. St. Rep. 851. 192 THE LAW OF EVIDENCE exp&rt witnesses which relate to appearances, conditions, etc., of persons, animals and things, gained by general observation. Thus, statements of a non-expert witness that a certain person looked badly ;^ appeared ill;* acted in an irra- tional manner;® seemed unfriendly;® appeared pale -J spoke affectionately;^ seemed to be weak;® looked scared;^" seemed sincere ;'^^ appeared to be satisfied ;^^ appeared to be sober ;^^ appeared to be intoxicated;^* appeared tired ;^® seemed at- tached to a certain person ;^^ appeared to be suf- 3. Bailey v. Centreville, 108 la. 20, 78 N. W. R. 831. 4. West Chicago St. Ry. Co. v. Fishman, 169 111. 196, 48 N. E. R. 447. 5. Paine v. Alder.ich, 133 N. Y. S44, 30 N. E. R. 725 ; Char- ter Oak Life Ins. Co. v. Rodel, 95 U. S. 232. 6. Blake v. People, 73 N. Y. 586. 7. Hall V. Austin, 73 Minn. 134, 75 N. W. R. 1121. 8. Polk V. State, 62 Ala. 237; Appeal of Spencer, 77 Conn. 638, 60 Atl. 289. 9. Birming., R. & F. Co. v. Franscomb, 124 Ala. 621, 27 So. 508. 10. State V. Ramsay, 82 Mo. 133, 137. 11. Horn V. State, 12 Wyo. 80, 73 Pac. R. 705. 12. Piano Mfg. Co. v. Kantenberger, 121 la. 213, 96 N. W. R. R. 743. 13. Cook V. Ins. Co., 82 Mich. 12, 47 N. W. R. 568. 14. People V. Eastwood, 14 N. Y. 562; State v. Cather, 121 la. 106, 96 N. W. R. 722; Burt v. Burt, 168 Mass. 204, 46 N. E. R. 622. 15. State V. Ward, 61 Vt. 153, 181, 17 Atl. R. 483. 16. McKee v. Nelson, 4 Cow. (N. Y.) 355, 15 Am. Dec. 384. OPINION EVIDENCE I93 fering;^''' was nice looking ;^^. showed mental an- guish ;^'' looked like he was insane,^" etc., belong to this class. Also statements relating to the identity of persons f^ the value of certain prop- erty ;^^ the speed of an ordinary train f^ the dis- tance a common headlight will project light on a track f^ the capacity of a certain sawmill,^^ etc. They express an inference or conclusion based upon observation of the appearance, manner, etc., of other persons. In a substantial sense, however, they are statements of facts, and are 17. Chicago & E. I. Ry. Co. v. Randolph, 199 111. 126, 65 N. E. R. 142; Werner v. Ry. Co., lOS Wis. 300, 81 N. W. R. 416. 18. Childs V. Muckler, 105 la. 279, 75 N. W. R. 100. 19. SheTwell v. Telg. Co., 117 N. C. 352, 23 S. E. R. 277. 20. Conn., etc.. Life Ins. Co. v. Lathrop. 21. Robertson v. State, 40 Fla. 509, 24 So. R. 474; Com. v. Kennedy, 170 Mass. 181, 48 N. E. R. 770; Keith v. State, 157 Ind. 376, 61 N. E. R. 716 (of a corpse) ; State v. Folwell, 14 Kan. 105 (by peculiar wagon tracks) ; Morris V. State, 124 Ala. 44, 27 So. R. 336 (by shoe tracks). Contra People v. Gots'hall, 123 Mich. 474,. 82 N. W. R. 274; Terry v.. State, 118 Ala. 79, 23 So. 776; Ogden v. People, 134 111. 599 (by voice) ; Com. v. Scott, 123 Mass. 224. 22. Latham v. Brown, 48 Kan. 190; Terre Haute Ry. Co. v. Crawford, 100 Ind. 550; Penn. Ry. Co. v. Bunnell, 81 Pa. St. 426; Swan Co. v. Middlesex, LOl Mass. 173; Raggan v. Kansas City Ry. Co., Ill Mo. 456; Huff v. Hall, 56 Mich. 456. 23. Atchison, T. & S. F. Ry. Co. v. HoUoway, 71 Kan. 1, 80 Pac. R. 31. 24. St. Louis, M. & S. E. Ry. Co. v. Shannon, 76 Ark. 166, 88 S. W. R. 851. 25. Fletcher v.- Prestwood, 143 Ala. 174, 38 So. R. 847. 194 THE LAW OF EVIDENCE legally relevant as such. Psychologically speak- ing, all testimony of witnesses is the expression of opinion; but legally speaking it is usually the expression of facts. Statements made by ordin- ary witnesses, based upon observation, are fre- quently designated opinion evidence, but, as pre- viously stated, in a substantial sense they are statements of facts. ^® They are not, however, in the true sense, expert testimony. ^'^ § 3. Summarized statement in the case of Hardy v. Merrill. — " Courts and text-writers all agree that, upon questions of science and skill, opinions may be received from persons specially instructed by study and experience in the^ par- ticular art or mystery to which the investigation relates. But without reference to any recog- 26. Connecticut, etc., Life Ins. Co. v. Lathrop, HI U. S. 612, 620 (In this case Harlan, J., says, "The truth is, the statement of a non-professional witness as to the sanity of an individual, whose appearance, manner, habits and conduct came under his personal observation, is not the expression of mere opinion. In form, it is opinion, be- cause it expresses an inference or conclusion based upon observation of the appearance, manner and motions of another person, of which a correct idea cannot well be communicated in words to others, without embodying, more or less, the impressions or judgment of the witness. But, in a substantial sense, and for every purpose essen- tial to a safe conclusion, the mental condition of an individual, as sane or insane, is a fact, and the expressed opinion of one who has had adequate opportunity to observe his conduct and appearance is but the statement of a fact."). 27. Com. V. Sturtevant, 117 Mass. 122, 19 Am. Rep. 401. OPINION EVIDENCE I95 nized rule or principle, all concede the admis- sibility of the opinions of non-professional men upon a great variety of unscientific questions arising every day and in every judicial inquiry. These are questions of identity, handwriting, quantity, value, weight, measure, time, distance, velocity, form, size, age, strength, heat, cold, sickness and health, questions also concerning various mental and moral aspects of humanity, such as disposition and temper, anger, fear, ex- citement, intoxication, veracity, general charac- ter and particular phases of character, and other conditions and things, both moral and physical, too numerous to mention . . . Opinions of witnesses derived from observation are admis- sible in evidence when, from the nature of the subject under investigation, no better evidence can be obtained. "^'^ § 4. Expert testimony of facts. — Expert testi- mony of facts and expert opinion testi- mony should be carefully distinguished. They are not synonymous. The former is not opinion at all.. It is tejstimony of facts by persons spe- cially qualified to give it. Thus, testimony of a medical expert as to the functions of certain organs of the human body;^" or testim-ony of a legal expert as to the unwritten law of a foreign 28. 56 N. H. 227, 22 Am. Rep. 448. 29. Young V. Makepeace, 103 Mass. SO. 196 THE LAW OF EVIDENCE cdiiritry,*" is expert testimony of a fact. It is not, however, expert opinion testimony. If the testimon}'- as to the unwritten law is not conflict- ing the question is one for the court to decide.^^ But where the testimony is conflicting the ques- tion is one for the jury to decide. ^^ Where the question is the meaning of a for- eign Statute which has not been interpreted by the courts of the foreign state expert opinion testimony is inadmissible.^^ On the other hand, if the question is the provisions of the statute expert opinion testimony is admissible. An ex- emplified copy of the statute is not essential.** § 5. Questions of sanity of testator. — Where the sanity of a testator is the fact in issue, ordin- ary witnesses, who have personal knowledge of the habits, acts and declarations of the deceased, are generally held to be competent witnesses.*^ Some courts, however, hold the contrary. These 30. Liverpool & G. W. S. Co. v. Phoenix Ins. Co., 129 U. S. 395, 445; Hall y. Costello, 48 N. H. 176, 2 Am. Rep. 207; Mo wry y. Chase, 100 Mass. 79, 86. 31. Christiansen v. Graver Tank Works, 223 111. 142, 79 N. E. R. 97; Hooper v. Moore, 50- N. C. 130. 32. Note, 20 Harv. Law Rev. S7S. 33. Clark v. Elkins, 38 Wash. 376, 80 Pac. R. 556, 107 Am. St. Rep. 858. 34. Barrows v. Downs, 9 R. I. 446, 11 Am. Rep, 283; Sussex Peerage Case, 11 CI. & F. 85. 35. Connecticut, etc.. Life Ins. Co. v. Lathrop, supra; Dom- inick V. Randolph, 124 Ala. 557, 27 So. R. 481 ; Queenan v. Oklahoma, 190 U. S. 458; Shaver v. McCarthy, 110 Pa. St. 339; State v. Bryant, 93 Mo. 273; Keithly v. Stafford, 126 111. 507; Grube v. State, 117 Ind. 277. OPINION EVIDENCE 197 coiirts take the view that juries are as competent to form opinions from the facts stated as non- expert witnesses.^-® The former view, however; is supported by the great weight of authority. And even those courts that support the narrow view hold that the subscribing witnesses to a will are competent to testify to the testator's mental capacity, because they are presumed to have given careful attention to this matter,^'^ Before a non-expert w;itness is allowed to state his opin- ion upon the question of sanity he is required to state facts within his own observation and knowledge upon which his opinion is based.** § 6. Expert opinion evidence. — ^Expert opin- ion evidence constitutes' the real' exception to the rule which excludes opinion testimony in its true sense. Two things are essential to justify admitting this class of testimony. First, the fact in issue must be of such a nature as to require expert opinion evidence.^® Secondly, the witness who gives it must be specially qualified as an ex- 36. In re Meyer's Will, ,184 N. Y. 54, 76 N. E. R. 920; Hast- ings V. Rider, 99 Mass. 622; Wyman v. Gould, 47 Me. 159. 37. See comprehensive note, 38 L. R. A. 715-722. 38. Chicago Union Traction Co. v. Lawrence, 211 111. 373, 71 N. E. R. 1024; Hempton v. State, 111 Wis. 127, 86 K W. R. .596; Wise v. Foote, 81 Ky. 10; State v. Potts, 100 N. C. 457 ; Chase v. Winans, 59 Md. 475. 39. Louisville, etc., Ry. Co. v. Brinckerhoff, 119 Ala. 606, 24 So. R. 892; Manayunk Fifth Mut; Bldgi Soc. v. Holt, 184 Pa. St. 572, 39 Atl. R. 293-. ■ 198 THE LAW OF EVIDENCE pert upon the subject in issue.*" These are pre- liminary questions of fact for the court to de- cide.*^ If the subject in issue is of such a nature that the jury are as capable as the witness of forming an opinion from the facts given, opinion testimony is inadmissible.*^ § 7. Chief features of expert opinion evidence. — The characteristic features of expert opinion evidence are as follows: (i) It is testified to by a witness who is specially qualified to give it. (2) It relates to a subject involving technical knowledge not possessed by an ordinary witness. (3) It is based upon facts which are proved or assumed to be true. § 8. Reason for admitting expert opinion tes- timony. — The reason for admitting expert opin- ion testimony is necessity. As said by Mr. Jones, " If the non-professional witness must on groj-inds of necessity be sometimes allowed to state the inferences which irresistibly rise in his 40. Grainer v. Still, 187 Mo. 197, 85 S. W. R. 114, 70 L. R. A. 49 (In this case it was held that an expert medical wit- ness, not an osteopath, and unfaeiiliar with osteopathic treatment, was incompetent to give expert opinion evi- dence involving that mode of trea;tmen]t.). 41. Mont. Ry. Co. v. Warren, 137 U. S. 348, 353; City of Ft. Wayne v. Coombs, 107 Ind. 75, 85, 7 N. E. R. 743, 57 Am. Rep. 82; Teele v. City of Bos.ton, 165 Mass. 89, 42 N. E. R. 506; Stillwell Mfg. 'Co. v. Phelps, 130 U. S. 520; White v. State, 133 Ala. 1^2, 32 So. R. 139; White V. McPherson, 183 Mass. 533, 67 N. E. R. 643. 42. McLaugfhlin v. Webster, 141 N. Y. 16 ; Mfg. Co. v. Dorgan, 58 Fed. R. 945. OPINION EVIDENCE I99 mind from those minute facts which he cannot detail, there are still stronger reasons for receiv- ing under proper limitations, the opinions of those skilled in matters of trade or science."*^ Where, however, the facts are such that their bearing on the issue can be estimated by ordin- ary men without special knowledge or training, opinion testimony is inadmiissible. " Opinions are never received if all the fa,cts can be ascer- tained and made intelligible to the jury, or if it is such as men in general are capable of compre- hending and understanding. The ordinary, af- fairs of life cannot be the subject of expert tes- timony.''*® § gi The danger in admitting opinion testi- mony. — In deciding disputes concernitig matters of fact parties to the litigation are entitled to the experience and judgment of the jury; and the danger which arises in admitting the opinions of witnesses is that the jury may substitute these opinions for their own.** " The verdict should express the jury's own independent conclusions from the facts and circumstances in evidence, and not be the echo of the opinions of witnesses, perhaps not unbiased."*'^ § 10. When the danger must be encountered. — The danger which arises in admitting opinion 43. Jones on Evid. §367 (369). 44. Auberle v. McKeesport, 179 Pa. St. 321. 45. Am. & Eng. Encyc. of Law (1st ed.), vol. 7, p. 493. 46. Hames v. Brownlee, 63 Ala. 277; Robertson , v. Stark, 15 N. H. 109. 47. Hames v. Brownlee, supra. 200 THte LAW OF EVIDENCE testimony must be encountered' in two classes of situations: "( I ) The first situation admitting the evidence is where the average witness cannot state and the average juror cannot co-ordinate into a reasonable mental result the sensations produced on the witness' mind by a number of minute and interblending phenomena. (2) The second situation is presented where the tribunal by whose experience on the subject, and the necessary qualifications for dealing with the sub- ject cannot within the time available be con- ferred on the jury by the parties or their wit- nesses."*^ ■ ■ ' . § II. Basis of expert opinion evidence.— ^As a general rule expert opinion evidence is based upon a hypothetical question.*® It may, however, be bas.ed upon personal knowledge,®" Where, the opinion is based upon, personal knowledge -the facts should be first given by the witness.®^ And where a physician bases his opinion, as to a per- 48. Cyc., vol. 17, p. 41. See also, Missouri, etc., Tel. Co. v. Vatidevort, 67 Kan. 269, 72 Pac. R. 771 ; Clark v. Baird, 9 N. Y. 183. . . ' - ,. 49. Hall V. Rankin, 87 la. 261,' '54 N. W. R..217; Miller v. : Smith, '112 Mass. 470, 475; Louisville, N. A. & C- Ry. Co. v. Wooi, 113, Ind. S44, 14 N. E. R."572, 16''N'! E. ^.197; Hardiman v. ■ Brown, 162 Mass. S8S, 39 N. E. R. 192 and note. 50. Trans. Line v. Ho^e, 95 U: S. ^97; Brown v. Huffard, 69 Mo.. 305. . 51. Raub V. Carpenter, 187 U.S. 159; Louisville Ry. Co. v. Falvey, 104 Ind. 409; Flanigan v. State, 106 Ga." 109, 32 S. E. R. 80. - - OPINION EVIDENCE 20I son's sanity, upon symptoms and circumstances, he should first state the symptoms and circum- stances. '^^ An expert opinion may not be based upon a hypothetical question which ig a com- pound of positive assertions and conclusions ;*^ nor upon the opinions of other experts; nor, as a general rule; upon hearsay.^* A physician, however, in giving this class of evidence, may base his opinion partly upon statements of his patient which describe his sufferings, symptoms, etc.^° He may not, however, base it partly upon personal knowledge and partly upon statements made by third persons.^® As a general rule expert opinion may not be "based upon all the evidence in the case.^'^ It may, however, in the discretion of the court, be based upon all the evidence of one or more witnesses, provided such evidence is imcontradicted, ti'ee from obscurity and assumed to be true.^^ It may also be based in part upon facts known to be true but which are not included in the hypothetical question, pro- 52. Hathorn v. King, 8 Mass. 371, 5 Am. Dec. 106. 53. Haish v. Payson, 107 III. 365. 54. Flanigan v. State, supra; Polk v. State, 36 Ark. 117. 55. Quaife v. Chicago & N. W. Ry. Co., 48 Wis. 513, 33 Am. Rep. 821. 56. Heald v. Thing, 45 Me. 392; Lxjuisville Ry. Co. v. Shires, ' 108 III. 617. 57. People V. McEIvaine, 121 N. Y. 250, 255, 24 N. E. R. 465, 80 Am. St. Rep. 820. 58. Hand v. Brookline, 126 Mass.. 324 ; Bennett v. State, 57 Wis. 69, 46 Am. Rep! 26; McCullom v. Seward, 62 N. Y. 316. 202 THE LAW OF EVIDENCE vided this is made to appear in the question asked. Some courts, however, have held that it must be based on the personal knowledge of the witness or on a hypothetical question.^® § 12. Scope of the hypothetical question. — The hypothetical question upon which expert opinion testimony is based must comprise evi- dence in the case, or legally I'elevant facts offered to be proved.®" It is not essential, however, that it embody even the substance of 'all the evi- dence.®^ It'must be, however, on the whole, a fair statement of the salient facts. ®^ A hypothet- ical question which unfairly embodies some of the facts and omits other material facts should be rejected."^ If the jury disbelieve material as- sumed facts upon which the opinion is based they should give no weight to the opinion. More- over, the court should so instruct 'them.®* § 13. Limitations of expert opinion evidence. — It is not within the province of an expert wit- 59. Grand Rapids Ry. Co. v. Huntley, 38 Mich. 537; Hunt v. State, 9 Tex. App. 166. 60. People v. Harris, 136 N. Y. 423 ; Kelly v. Kelly, 103 Md. 548, 63 Atl. 1082. 61. Chicago & E. I. Ry. Co. v. Wallace, 202 111. 129, 66 N. E. R. 1096; Brooks v. Sioux City, 114 la. 641, 87 N. W. R. 682. 62.' Howard' V. People, 185 111. 552, 57 N. E. R. 441; Cole v. Fall Brooks C. Co., 159 N. Y. 59, 53 N. E. R. 670; State V. Anderson, 10 Ore. 448. 63. Sohaidler v. Ry. Co., 103 Wis. 564, 78 N. W. R. 732; In re Barber's Estate, 63 Corin. 393, 27 Atl. R. 973. 64. State v. Peel, 23 Mont. 358, 59 Pac R. 169, 75 Am. St. Rep. 529 ; People v. Foley, 64 Mich. 148. OPINION EVIDENCE 2O3 ness to decide questions of fact. This function belongs to the jury. Hence, when a hypothetical question is so framed that it calls for an opinion which virtually amounts to an expression of the withess as to the merits of some phase of the case it isiaulty and should be rejected.®^ Thus, a hypothetical question so framed that it calls ior an expert opinion as to whether certain acts- constituted suicide or murder;'^® what constitutes "practicing medicine"';®^ whether certain acts constituted negligence;®* whether the state- ments of a certain witness are true;^® which par- ent was better fitted for the custody of their children;'''' whether the time had arrived for' the accused, who had pleaded self-defense, " either ' to run or fight " ;^^ whether certain repairs were sufficient f^ whether certain acts were neces- '65. Page v. State, 61 Ala. 16; Anderson v. State, 104 Ala.,, 83, 16 So. 108; Hamrick v. State, 134 Ind. 324, 327, 34 N. E. R. 3; Evans V. Evans, 123 la. 92, 98 N. W. R. 584; State V. Myers, 54 Kan. 206, 38 Pac. R. 296; People v. Lehr, 196 111. 361, 63 N. E. R. 725. 66. Furbush v. Maryland Casualty Co., 131 Mich. 234, 91 N. W. R. 135, 100 Am. St. Rep. 60S. 67. People v. Lehr, supra. 68. Brant v. Lyons, 60 la. 172; Ballard v. New York Ry.Xo., 126 Pa. St. 141 ; East Tenn. Ry. Co. v. Wright, 76 Ga. 532_ 69. HoUemah v. Caba'nne, 43 Mo. 568. 70. State v. Giroux, 19 Mont. 147, 47 Pac. R. 798. 71. Lowman v. State, 109 Ga. 501, 34 S. E. R. 1019. ■72; DamraannV. s't. Louis, 1*52 Mo. 186, 53 S. W. R. 932. 204 THE LAW OF EVIDENCE sary;^^ whether a given pugilistic encounter amounted to a fight ;^* whether two given state- ments are similar ;^^ who was rightfully entitled to certain mone^'j'^® whether good judgment was exercised;''^ w^hether the operation of certain machinery was safe;^^ whether certain timber was liable to frighten horses j^" as to the possibil- ity of committing rape on a mature woman ;^'' whether a given gate is sufficient to turn cattle ;^^ whether a given object was likely to cause in- jury;*^ how a certain act should have been 73. Kelly V. West Bend, 101 la. 669, 70 N. W. R. 726; Chi-^ cago R. I. & P Ry. Co. v. Holmes, 68 Neb. 826, 94 N. W. R. 1007. 74. Seville v. State, 49 Ohio St. 117, 30 N. E. R. 621, IS L. R, A. 516. 75. State v. McLaughlin, 126 N. C. 1080, 35 S. E. R. 1037. 76. Martin v. Connell, 3 Neb. 240, 91 N. W. R. 516. n. Rhifer V. Ry. Co. 122 N. C. 940, 29 S. E. R. 578; Auberle V. McKeesport, 179 Pa. St. 321, 36 Ati: 212; Stowe v. Bishop, 58 Vt. 498, 56 Am. Rep. 569. 78. Hurst V. Ry. Co. 163 Mo. 309, 63 S. W. R. 695, 85 Am. St. Rep. 539; contra, Gundlach v. Schott, 192 111. 509, 61 N. E. R. 332, 85 Am. St. Rep. 348. 79. Burns v. Farmington, 31 N. Y. 364. Contra Clinton v. Howard, 42 Conn. 294. 80. Lawlor v. Wolff, 180 Mass. 448, 62 N. E. R. 973 ; State v. Dusenberry, 112 Mo. 277, 20 S. W. R. 461; State v. Peterson, 110 la. 647, 82 N. W. R. 329. See also, People V. Clark, 33 Mich. 112. 81. Collins V. Chlcafeo, etc., Ry. Co., 122 la. 231, 91 N. W. R. 1103. 82. Edwards v. Worcester, 172 Mass. 104, 51 N. E. R-. 447; People V. Detroit & S. P. Ry. Co., 125 Mich. 366, 84 N. W. 290; Orr v. State, 117 "Ala. (i9, 23 So. R. 696. OPINION EVIDENCE 205 done;** what authority a given person had, or what duty rested upon him, in view of certain facts;** whether it was possible to commit rob- bery in the manner charged;*^ what the earning capacity of a given person is j**" ^yhether a given well produces gas in paying quantities f'^ wheth- er a given photograph is obscene;** as to the public utility of a proposed highway;*" whether the plaintiff resembles an alleged libelous pic- ture f° whether certain acts of a physician con- stituted malpractice;*^ whether a young child of a given age had capacity to exercise ordinary care f^ whether a person could have been cogni- zant of a given thing thru the sense of sight or hear- ing;®* whether bankers would discount a given note written on tracing paper;** whether it was 83. Springfield Ry. Co. v. Welsh, 155 111. 511, 40 N. E. R. 1034; contra, O'Brien v. Look, 171 Mass. 36, SO N.E.R. 458. 84. Lipscomb v. Ry. Co., 95 Tex. 4, 64 S. W. R. 923, 93 Am. >St. Rep. 804. 85. People V. Morrigan, 29 Mich. 4. 86. Wilcox V. Wilmington City Ry. Co., 2 Pennew. (Del.) 157, 44 Atl. R. 686. 87. Ohio Oil Co. v. McCrory, 14 Ohio Cir. Ct. 304, 7 Ohio Cir. Dec. 344. 88. People v. MuUer, 96 N. Y. 408, 48 Am. Rep. 635. 89. Thompson v. Deprez, 96 Ind. 67. 90. Squire v. Press Pub. Co., 58 N. Y. 362, 68 N. Y. Supp. 1028. 91. Hoener v. Koch, 84 111. 408. 92. Lynch v. Smith, 104 Mass. 52, 6 Am. Rep. 188. 93. Welch V. Ry. Co., 176 Mass. 393, 57 N. E. R. 668; Mc- Geary v. Ry. Co., 21 R. I. 76, 41 Atl. R. 1007. Contra, Olson V. Ry. Co., 152 Mo. 426, 54 S. W. R. 470. 94. Rowland v. Fowler, 37 Conn. 348. 206 THE LAW OF EVIDENCE safe for a guest at a given inn to keep his money in a locked trunk ;®^ whether a dwelling house would take fire from a burning barn twenty-six feet away ;^® whether the erection of adjacent buildings increased the danger from fire;®'' whether it was safe to stand any other way than tiatwise in coupling" cars f? whether a given piece of paper had been used as wadding, and as such shot from a gun;'-*® whether glass in a side- walk, placed there to afford light below, was un- safe owing to its slipperiness;"" whether a fire, set under given circumstances, would have spread to adjoining land ;^ as to what part of a hill was its highest part;^ whether a given physi- cian has honorably and faithfully discharged his duty to his professional brethern,^ or, what the original purpose was in building a wall that was erected between twenty and thirty yeajrs ago,* is faulty and should be rejected. § 14. Opinion testimony on questions pertain- ing to values. — Opinion testimony of the value of property is often admitted in evidence. As said by Nelson, C. J., " It is everyday's practice 95. Taylor v. Mounot, 4 Duer (N. Y.) 116. 96. State v. Wilson, 65 Me. 74. 97. Franklin Fire Ins. Co. v. Gruver, 100 Pa. St. 266. - 98. Belair v. The C. & N. W. R. Ry. Co., 43 la. 667. 99. Manke v. People, 24 Hun (N. Y.) 316, 78 N. Y. 611 100. City of Chicago v. McGiven, 78 111. 347. 1. Higgens V. Dewey, 107 Mass. 494. 2. Hovey v. Sawyer, 5 Allen (Mass.) 554. 3. Ramadge v. Ryan, 9 Bing. (N. C.) 333. . 4. Sinnott v. Mullin, 82 Pa. St. 342. OPINION EVIDENCE 20/ to take the opinion of witnesses as to the value of property — persons who are supposed to be conversant with the particular article in ques- tion, and of its value in the market : as a farmer, or dealer in, or person conversant with the arti- cle, as to the value of land, cattle, horses, prod- uce, etc. These cases all stand upon the general ground of peculiar skill and judgment in the mat- ters about Af^hich opinions are sought."' The- grotnid of admissibility is necessity.® Opinions as to values may be given by ordin- ary witnesses.'' As said by Gray, J., " These ■opinions are admitted, not as being the opinions ■of experts, strictly so called, for they are not founded on special study or training, or pro- fessional experience, but rather from necessity, upon the ground that they depend upon knowl- edge which any one may acquire, but which the jury may not have, and that they are the most satisfactory, and often the only attainable evi- 103 Mass. 412 (A witness not specially qualified also competent). OPINION EVIDENCE 233 the constituent elements of a. given compound;^* as to the probability of spirits evaporating under given conditions f^ as to the species of given animal fur,^® etc. In the reference given in foot- note 26 Mr. Richardson gives an interesting account of opinion evidence by a microscopist. In this case the mother of a nine-year-old girl was charged with murdering her by cutting her throat. A knife, with blood stains and hair on it, was produced and the accused said she had used it in cuting the throat of a rabbit. With no knowledge of the facts of the case, a microscopist who examined the hair pronounced it squirrel's fur. The evidence showed that the little girl, at the time of her murder, wore around her neck a tippet or victorine made of squirrel's fur. Upon this circumstantial evidence the accused was convicted. And subsequently she confessed her guilt. § 34. Some miscellaneous illustrations of ex- pert opinion evidence. — A medical expert may give opinion evidence as to the deadly character of a weapon f^ as to whether a certain wound could have been produced by a given weapon;^® as to the direction from which a blow came;^® 24. Alleti V. Hunter, 6 McLean 303, 310. 25. Turner v. The Black Warrior, 1 McAlister, 181, 184. 26. Richardson's Medical Microscopy 295 ; Rogers on Expert Testimony, p. 146. 27. Banks v. Starte, 13 Tex. App. 182. 28. State v. Knight,. 43 Me. 1, 130 (a razor) ; Batten v. State, 29. McKee v. State, 82 Ala. 32. 234 THE LAW OF EVIDENCE as to whether the instrument used was blunt or sharp ;•'"' as to whether the wound was made by a dirk f'^ as to the serious nature of a disease,^^ etc. A chemist and toxicologist, as well as a physi- cian, is competent to give expert opinion evi- dence as to the effect' of taking strychnine into the human stomach. ^^ A physician may testify that pregnancy is as likely to result from a case of rape as where the act was voluntary;^* as to the permanency of loss of eyesight;*^ as to the condition of a corpse at various times after bur- ial ;^^ as to the sex of a skeleton,^''' etc. A mid- wife, as well as a physician, may give expert opinion evidence that the birth of a child was pre- mature.^^ A surgeon may give expert evidence as to the ligaments that would be severed in a given operation. ^^ A veterinary may give opinion evidence pertaining to matters within the knowl- edge of members of his profession.*" A medical expert may not, however, give expert opinion, 30. State v. Morphy, 33 la. 272. 31. Mendum v. Com. 6 Rand. (Va.) 704. 32. Linton v. Hurley, 14 Gray (Mass.) 191. 33. State v. Cook, 17, Kan. 392. 34. State v. Knapp, 45 N. H. 484, 49S, See also Young v.. Johnson, 46 Hun (N. Y.) 164. 35. Tinoey v. New Jersey Steamboat Co., 12 Abb. Pr. (N. S) 1. 36. State v. Secreat, 80 N. C. 450, 453. 37. Wilson V. State, 41 Tex. 320, 321. 38. Mason v. Fuller, 45 Vt. 29. 39. Johnson v. Winston (Neb. 1903), 94. N. W. R. 607. 40. Grayson v. Lynch, 163 U. S. 468, 16 S. Ct. 1064, L. ed. 230. OPINION EVIDENCE 235 evidence of the effect of a surgical operation on the moral nature.*^ § 35. Some miscellaneous illustrations of opinions not admissible. — As stated in § 13, an opinion which virtually amounts to an expres- sion as to the merits of the case under investiga- tion should be rejected. Moreover, .when the facts are such that they can be made palpable in the concrete to, the jury; or, in other words, when the jury can virtually stand in the shoes of the witness and see the facts thru his eyes, as it were, opinion testimony is inadmissible.*^ Thus, for the reasons stated, opinion. testimony has been held inadmissible as to whether a given hole was calculated to frighten horses f^ what the result would have been under given circum- stances if the driver of a wagon had made a cer- tain turn;** as to the best and safest way of load- 41. People V. Royal, ,53 Cal. 62 (Indecent liberties). 42. Alabama Mineral R. Co. v. Jones, 114 Ala. 519, 21 So. R. 507, 62 Am. St. Rep. 121 ; Illinois Steel Oo. v. Mann, 197 111. 186, 64 N. E. R. 328; Green v. State, 154 Ind. 655, 57 N. E. R. 637; Frick v. Kabaker, 116 la. 494, 90 N. W. R. 498; Atchison, etc., Ry. Co. v. Chance, 57 Kan. 40, 45 Pac. 60; Welch v. New York, etc., Ry. Co., 176 Mass. 393, 57 N. E. R. 668; Athertan v. Bancroft, 114 Mich. 241, 72 N. W. R. 208; Seifred v. Penn. Ry. Co., 206 Pa. St. 399, 55 Atl. R. 1061 ; Lee v. Knapp, 155 Mo.' 610, 56 S. W. R. 458; Gardner, v. Friederich, 163 N. Y. 568, 57 N. E. R. 1110. 43. Smith V. Sherwood Tp., 62 Mich. 159, 28 N. W. R. 806. 44. W. J. Lemp Brewing Co. v. Ort, 113 Fed. R. 482, 51 C. C. A. 317. 236 THE LAW OF EVIDENCE ing car wheels;*^ as to the extent of moonlight as to the quantity and quality;" as to the proba- bility of a person falling in walking on an un- even Hoor;*^ as to the dangerous condition of a place;*® as to the possibility that a sewer cover would tip before slipping;*® as to the possibility of seeing a pistol alleged to have been concealed ;^*' as to the common characteristics of animals ;^^ as to the effect of opening windows in a stable containig horses f^ as to the safety of driving between given obstructions f^ as to the effect of intoxication on the health;^* as to whether the death of a horse was caused by overdriving;^^ as to the destructive nature of fire f^ as to the bouy- ancy of water f^ as to the deadly nature of a given weapon;^® as to whether a bullet hole in a door 45. Southern Ry. Co. v. Mauzy, 98 Va. 692, 37 S. E. R. 285. 46. Green v. State, supra. 47. Illinois Steel Co. v. Mann, supra. 48. Siegler v. Mellinger, 203 Pa. St. 399, 52 Atl. R. 175, 93 Am. St. Rep. 767. 49. Ward v. Troy, 55 N. Y. App. Div. 192, 66 N. Y. Suppl. 925. 50. Nichols V. State, 100 Ala. 23, 14 So. R. 539. 51. Barber v. Manchester, 72 Conn. 675, 45 Atl. R. 1014 (largely discretionary with court). 52. Metropolitan Sav. Bank v. Manion, 87 Md. 68, 39 Atl. R. 90. 53. Locke v. Internat., etc., Ry. Co., 25 Tex. Civ. App. 145, 60 S. W. R. 314. 54. Rawls V. Am Mut. Ins. Co., 27 N. Y. 282, 84 Am. Dec. 280. 55. Brewster v. Weir, 93 111. App. 588. 56 Welch V. Franklin Ins. Co., 23 W. Va. 288. 57. Hughes V. Muscatine Co., 44 la. 672. 58. Majors v. State (Miss. 1904), 35 So. 825. OPINION EVIDENCE 237 shown to the jury was made from the inside or outside f^ as to whether two specimens of hair were from the same head;^" as to the danger involved in coupHng cars ;®^ as to the inducement in a seduction case f^ as to the dangerous nature of razing a building ;''* as to the suitabiHty of female apparel;®* as to the ability of a given per- son to manage employes;®^ as to the possibility of killing a man with a hoe within striking dis- tance ;*® as to matters pertaining to ordinary bookkeeping ;''''^ as to the noninsurabihty of a habitual drunkard;®^ as to whether a person who ■ is struck by a train running at full speed could possibly survive;*^ as to whether a person had sufficient time to alight from a train i^" as to whether a given person acted like a lover ;''^ as 59. Golson V. State, 124 Ala. 8, 26 So. 975. 60. Knoll V. State, 55 Wis. 249, 12 N. W. R. 369, 42 Am. St, Rep. 704. 61. Muldowney v. 111. Cent. Ry. Co., 36 la. 462. 62. Anderson v. State, 104 Ala. 83, 16 So. R. 108. 63. Nourie v. Theobald, 68 N. H. 564, 41 Atl. 182. 64. Coimpton v. Bates, 10 111. App. 78. 65. Troy Fertilzer Co. v. Logan, 90 Ala. 325, 8 So. R. 46. 66. Holmes y. State, 100 Ala. 80, 14 So. R. 864. 67. McKay v. Overton, 65 Tex. 82. 68. Rawles v. Amer. Mut. Life Ins. Co., 27 N. Y. 282, 84 Am. Dec. 280. 69. Chicago, etc., Ry. Co. v. Lewandowski, 190 111. 301, 60 N. E. R. 497. See also, H^llyer v. People, 186 111. 550, 58 N. E.R. 245. 70. Easier v. Southern Ry. Co., 59 S. C. 311, 37 S. E. R. 938. 71. Carney v. State, 79 Ala. 14. 238 THE LAW OF EVIDENCE to whether certain letters are " evasive,"^^ etc. "The true test of the admissibility of such testimony is not whether rhany persons or few have knowledge of the matter ; but it is whether the witnesses offered as experts have any pecul- iar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or jury in determinng the questions at issue."'"^ In many cases the matter rests in the sound discretion of the court. 72. Kellog V. Frazier, 40 la. 502. 73. Taylor v. Monroe, 43 Conn. 36, 44. CHAPTER XVIII. Proof of Handwriting. § I. In general. — One of the most important rules of evidence is that the best evidence attain- able must be produced. This rule does not ex- clude, however, the testimony of a person as to the handwriting of another. As said by Mr. Starkie, " There is not such a distinction between one man's knowledge of his own handwriting, and the knowledge of another on the same sub- ject as constitutes the former evidence of a su- PROOF OF HANDWRITING 239 perior degree to the latter."^ And this rule is appHcable to both civil and criminal cases.* § 2. Ancient documents. — Documents which are at least thirty years old, and which are pro- duced from their proper custody, are presumed to be genuine ; and the signature, as well as every other part of the document which purports to be in the handwriting of a given person, is pre- sumed to be in his handwriting. No further proof is required upon this point. This presumption arises not only in the case of formal documents, such as deeds, mortgages, wills, etc., but also in the case of informal writings, such as receipts, letters, etc.* But in the case of documents less than thirty years old their genuineness must be proved. § 3. Opinion testimony admissible. — Where the genuineness of handwriting has to be proved opinion testimony is admissible. Moreover, it may be given both by experts and non-experts. A non-expert, however, is not competent to give opinion testimony based upon the comparison of writings placed in juxtaposition. 1. Stark. Evid. 339 (6th Am. ed.). See also, Leverts v. State, 49 N. J. L. 26, 6 Atl. R. 521 ; Burgess v. Burgess, 44 Neb. 16, 62 N. W. R. 242. 2. Hammond's Case, 2 Greenl. (Me.) 33, 11 Am. Dec. 39; De la Motte, 21 How. St. Tr. 810. 3. Scharff v. Keener, 64 Pa. St. 376; Berry v. Raddin, 11 Allen. (Mass.) S79; Bell v. Brewster, 44 Ohio St. 694; Doe V. Beynon, 12 A. & E. 431. 240 THE I.AW OF EVIDENCE § 4. Opinion of non-expert who has seen the party write. — Opinion evidence of a non-expert who has seen the party, whose handwriting is in dispute, write even once is admisisble ;* and even where the act was performed many years ago;^ and even where the impression of the witness is faint and somewhat vague;® and even altho he has never seen him write more than his nameJ Where the witness has seen the party write, but is so ilHterate himself that he is un- able to read or write, some courts hold that he is not qualified to give opinion evidence of hand- writing.® Other courts, however, hold the con- trary.® § 5. Rule where the witness has corresponded with the party. — Where the witness has acquired 4. Vinton v. Peck, 14 Mich. 287, 293; Frank v. Berry, 128 la. 223, 103 N. W. R. 358; Com. v. Nefus, 135 Mass. 553; State V. Goodvvfn, 37 La. Ann. 713 ; Hammond v. Varian, 54 N. Y. 398. 5. Home Tooke's Case, 25 How. St. Tr. 71 (nineteen years before) ; Wilson v. Van Leer, 127 Pa. St. 371, 17 Atl. R. 1097, 14 Am. St. Rep. 854 and note; Warren v. Anderson, 8 Scott 384. 6. Riggs V. Powell, 142 111. 453, 32 N. E. R. 482 ; Hammond's Case, supra and note ; State v. Hall, 16 S. D. 6, 91 N. W. R. 325. See also 16 Am. Law Rev. 569. 7. Garrells v. Alexander, 4 Esp. 37; Warren v. Anderson, supra; Smith v. Walton, 8 Grill (Md.) 18; Rediout v. Newton, 17 N. H. 71. 8. People V. Corey, 148 N. Y. 476, 42 N. E. R. 1066. 9. Foye v. Patch, 132 Mass. 105. For an able discussion of this question see Woodman v. Dana, 52 Me. 9. Sec also. State V. Scott, 45 Mo. 302 ; Burnham v. Ayer, 36 N. H. 182. PROOF OF HANDWRITING 24I a knowledge of the handwriting of the party- thru correspondence he is deemed competent to give opinion evidence.^" It has been held, how- ever, that the correspondence must have been in the ordinary course of business; and further- mare, that it must have been relied upon.^^ Ac- cording to the general trend of the decisions, however, the. witness is competent to give opin- ion evidence as to the handwriting of his corre- spondent altho he did not act upon the letters received from him. The mere receipt of the letters, however, does not establish the fact that they were written by the person whose name is signed to them. Further evidence on this point is essential. -^^ § 6. Rule where the party has acknowledged the writing as his. — Where the party, whose handwriting is in dispute, has acknowledged that he is the author of a given writing, which has been seen by the witness, the latter is com- petent to give opinion evidence as to the gen- uineness of the handwriting in dispute. ^^ 10. Thomas v. State, 103 Iiid. 419, 429 ; Parsons v. McDaniel, 62 Ga. 100; Empire Manuf. Co. v. Stuart, 46 Mich. 482; Southern Exp. Co. v. Thornton, 41 Miss. 216. .11. Pinkham v. Cockell, ^^ Mich. 265, 43 N. W. R. 921. 12. Hig-htower v. Ogktree, 114 Ala. 94, 21 So. R. 934; Pink- ham V. Cockell, n Mich. 272, 43 N. W. R. 921; White S. M. Co., V. Gordon, 124 Ind. 495. 13. Second Nat. Bank v. Wentzel, 151 Pa.- St. 142 (genuine- ness of signature of note) ; Berg v. Peterson, 49 Minn. 420, 52 N. W. R. 37; Riggs v. Powell, 142 111. 453, 32 242 THE LAW OF EVIDENCE § 7. Rule where letters of the party pass thru the witness' hands. — Altho the witness has never seen the party write, or had correspondence with him, yet, if he has acquired a knowledge of his handwriting in consequence of letters ad- dressed by the party having passed thru his hands in the ordinary course of business he is competent to give opinion evidence as to the genuineness of that party's handwriting. As said by Lord Denham, " The servant who has habitually carried letters addressed by me to others has an opportunity of obtaining a knowl- edge of my writing though he never saw me write, nor received a letter from me."^* And similarly, where an official becomes familiar with the handwriting of a party thru the performance of his official duties he thereby becomes quali- fied to give opinion evidence as to the genuine- ness of the party's signature.^" § 8. Rule where knowledge is acquired for the purpose of testifying. — Where the witness ac- quires knowledge of the party's handwriting for the sole purpose of giving opinion evidence of it such opinion testimony will be rejected, unless it clearly appears to the satisfaction of the court that the purpose in doing so was not to manufac- N. E. R. 482 (acknowledgement implied) ; Cabarga v. Seezer, 17 Pa. St. 514; Hammond v. Varian, 54 N. Y. 398. 14. Mudd V. Suckermore, S Ad. & Ell. 703. 15. Rogers v. Ritter, 12 Wall. (U. S.) 317; Amherst Bank v. Root, 2 Mete. (Mass. 522; Yat«s v. Yates, 1(> N. C. 142. PROOF OF HANDWRITING 243 ture testimony.^" Moreover, some courts reject the testimony on the ground that the witness, under such circumstances, is naturally biased. As said in an Illinois case, " His knowledge was acquired under circumstances tending to bias his mind, imperceptibly tho it may have been to himself. It is scarcely probable that he did not have some impression of the genuineness of the signature before he examined the guardian's re- ports . . . When, therefore, he investigated, hoAvever honest he may have believed himself to be, the natural tendency of his mind would most likely find something to confirm his precon- ceived opinion. In this way important differ- ences may have been overlooked, and sHght re- semblances greatly magnified."" Even an ex- pert who acquires a knowledg'e of another's handwriting by watching him write several times for the sole purpose of testifying is incompe- tent.i« § 9. Expert opinion evidence admissible. — Whenever handwriting is a subject of inquiry in a judicial proceeding expert opinion evidence is admissible. ^^ 16. Reese v. Reese, 90 Pa. St. 89, 35 Am. Rep. 634 and note ; Reed v. State, 20 Ga. 681; Keith v. Lathrop, 10 Cush. (Mass.) 453. 17. Board of Trustees v. Misenheimer, 78 111. 22, 24. See also, Reese v. Reese, supra; fceith v. Lathrop, supra. 18. Reese v. Reese, supra. 19. Sweetser v. Lowell, 33 Me. 450. '244 - THE LAW OF EVIDENCE § lo. An expert witness. — An expert is one who has acquired actual skill and scientific knowledge pertaining" to the subject under con- sideration. He " must have been educated in the business about which he testifies ; or it must first be shown that he has acquired skill and scientific knowledge upon the subject."^" The mere fact that he has occasionally cofnpared signatures that have been the subject of dispute is not suf- ficient to qualify him as an expert. ^^ On the other hand, " It is enough that he has been en- gaged in some business which calls for frequent comparisons, and that he has in fact been in the habit for a length of time of making such com- parisons."^^ It has been held that where a wit- ness testifies that he is an expert in writing " by having written a great deal, and by having seen and read a great deal of writing," he is qualified to give expert opinion evidence. ^^ It also has been held that " one who does not profess to be an expert in handwriting, or whose avocation in life has not been such as to qualify him to judge of handwritings, should not be permitted to tes- tify as an expert."^* Tellers^'^ and cashiers^^ of 20. Goldstein v. Black, SO Cal. 464. 21. Goldstein v. Black, supra. 22. Ort V. Fowkr, 31 Kan. 478, 486. 23. Chester v. State, 23 Tex. Ct. of App. 583. 24. State v. Tompkins, 71 Mo. 613. 25. SpeideT v. State, 3 Tex. Ct. of App. 159. 26. Dubois V. Baker, 30 N. Y. 355, 361., • PROOF OF HANDWRITING 245 banks, writing masters, ^^ writing engravers,^^ clerks in post offices,^'^ bookkeepers,^" county- clerks,^^ lawyers,^^ and even sheriffs,^^ have been held, under certain conditions, competent expert witnesses in handwriting. § II. Modes of proving handwriting by com- parison. — There are two modes of proving hand- writing by comparison. One is by comparing the writing, whose genuineness is in question, with an exemplar in the mind of the witness. The other is by comparing the writing with an- other writing which is proved or admitted to be genuine. By the former method a non-expert may be competent to make a comparison; but by the latter method he is not. § 12. A comparison by juxtaposition. — The question of proving handwriting by placing it in juxtaposition with a writing which is proved or admitted to be genuine is one upon which the decisions are in conflict. And this conflict exists not only as to the competenc)'- of expert wit- nesses to make the comparison, but also as to the competency of the jury to make it. § 13. Competency of the jury to make the comparison. — At common law, where genuine 27. Moody V. Rowell, 17 Pick. (Mass.) 490. 28. Reg. V. Williams, 8 C. & P. 34. 29. Revett v. Braham, 4 Term Rep. 49. 30. State v. Ward,' 39 Vt. 22S. 31. State V. Phair, 48 Vt. 366, 369. 32. State v. Phair, supra; Eisfield v. Dill, 71 la. 442, 445. 33. Yates v. Yates, 76 N. C. 142. 246 THE LAW OF EVIDENCE specimens of handwriting are introduced in evi- dence for purposes other than to make compari- son, or where they constitute part of the record in the case, the jury may compare the writing in dispute with these standards.^* The specimens, in such case, "being before the jury it is hardly possible to prevent a comparison being institut- ed."^* On the other hand, where the specimens are introduced solely for the purpose of compari- son the jury, at common law, are incompetent to make it. This rule, however, has been changed by statute. See § 16 of this chapter. § 14. Reasons for the common-law rule. — The reasons for the English common-law rule, which excluded the jury from making a comparison with specimens of handwriting introduced solely for that purpose, are stated by Mr. Best^® as fol- lows : " First, that the writings ofifered for the purpose of comparison with the document in question might be spurious, and consequently that, before any comparison between them and it could be instituted, a collateral issue must be tried to determine their genuineness. Nor is this all, — if it were competent to prove the gen- uineness of the main docviment with others, it must be equally so to prove that of the latter by comparison with fresh ones ; and so the inquiry 34. Doe V. Suckermore, 5 Adol. & El. 703, 704. See also, State V. Minton, 116 Mo. 60S, 614, 22 S. W. R. 808; Moore V. United States, 91 U. S. 270, 23 L. ed. 346. 35. Doe V, Suckermore, supra. 36. Best, Evid. (10th ed.), §238. PROOF OF HANDWRITING 247 might go on ad infinitum, to the great distraction of the attention of the jury and delay in the ad- ministration of justice.^'' Secondly, that the specimens might not be fairly selected.** Thirdly, that the persons composing the jury might be unable to read, and consequently be unable to institute such comparison."*^ § 15. Expert opinion based upon a compari- son by juxtaposition. — Originally, the English common-law courts did not, as a general rule,, admit expert opinion evidence of handwriting based upon a comparison by placing writings in juxtaposition.*" This rule, however, as stated in § 16 of this chapter has been changed by statute. On the other hand, the ecclesiastical courts have always admitted this class of testimony.*^ § 16. Same. The English statute. — Upon this question the English statute provides as follows : " Comparison of a disputed writing with any- writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by witnesses, and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuine- 37. Doe V. Suckermore, supra. 38. Burr v. Harper, Holt N. P. 420. 39. Eagleton v. Kingston, 8 Ves. 475. , 40. Doe V. Suckermore, supra. 41. Reily v. Rivett, Prerog., 1 Cases in Eng. Eccl. Cts. 43, note a; Saph v. A-tkinson, 2 Eng. Eccl. R. 64, 88, 89; Beaumont v. Perkins, 1 Phill. 78. 248 THE LAW OF EVIDENCE ness or otherwise of the writing in dispute."*^ It is expressly provided in the statute that it shall not apply to Scotland. § 17. Interpretation of the English statute. — Mr. Taylor, in interpreting the English statute, says : " Under this statutory law it seems clear, first, that any writings, the genuineness of which is proved to the satisfaction, not of the jury, but of the judge (see Eagan v. Cowen, 30 Law Times 223, in Ir. Ex.), may be used for the purpose of comparison, altho they may not be admissible in evidence for any other purpose in the cause (Birch v. Ridgway, i Post. & Fin. 270; Cresswell v. Jackson, 2 Post. & Pin. 24); and next, that the comparison may be made either by witnesses skilled in deciphering hand- writing, or; without the intervention of any wit- nesses at all, by the jury themselves (Cobbett v. Kilminster, 4 Post. & Fin. 490, per Martin, B.), or in the event of there being no jury, by the court."" § 18. Views in United States conflicting. — In this country the decisions upon the question of admitting expert opinion testimony of handwrit- ing, based upon a comparison of writings placed in juxtaposition, are not harmonious. 42. 28 and 29 Victoria, ch. 18, § 8. A similar statute was enacted in 1854 (17 and 18 Victoria, ch. 125). This statute, however, was applicable only to civil cases. In ' '" 1865 the rule was extended by statute so as to apply also to criminal cases. 43. 2 Taylor, Evid., § 1668. PROOF OF. HANDWRITING 249 In nearly all of , the states the opinion testimony is admissible, provided the specimen of. hand- writing with which, the one in dispute is com- pared is in the case for s6me other purpose,** This rule obtains in the' federal courts.*^ But many of the state courts go farther than this and admit the opinion testimony even when it is based upon a colnparison made , with a specimen of hand- writing which is not in the case for, some other purpose, provided the specimen is proved or ad- mitted to be. genuine.*®' § 19. Case of Moore v. Uniteid States.— ^This case was tried by the court of claims, which, like a court of equity, or admiralty, determines the facts as well as the law. The point involved. Upon which the case was appealed to the su- 44. McDonald v. McDonald, 142 Ind. SS, 41 N..E. R. 336; State V. Thompson, 132 Mo. 301, 34' S. W. R. 31 ; Hazel- ton V. 'Union Banik, 32 Wis. 47; Fulkr v. Fox, 101 N. C. 119, 9 Am. St. Rep. 27; Peck v Callaghan, 95 N. Y. Ti\ Putnam v. Wadley, 40 III. 346; Bradfotd v. People, 22 Golo. 157, 43 Pac. R. 1013; Moon v. Crowder, 72 Ala. 79. 45. Moore v. United; States, 91 U. S. 270; Williams v. ,Conger, 12s U. S. 270; United States v. Hickory, ISl U. S. 303; Stokes. V. 'Uiiited States, 1S7, U. S,,]i94; Withrop v. United States, 127 Fed. R. 530. 46. Williams^ V. Conger, 125 U. S. 270; Stokes, v. United . States, 157 TJ.'S. 194'; United States v. liickory, iSl U. S. 303 ; State v. Zimmerman,- 47 Kan! 242 ; University of - ' Illinois V. Spaulding, 71 N. H. 163, 51 All, R. 731 ; CoS- r:- tello,v. Growell, 139 Mass. 588; In re Rockey's Est.nl55 Pa. St. 453; Morrison v. Porter, 35, Minn. 425, 5?i,Am. Rep. 331 ; State v. Farrington, 90 la. 673, 57 N.' W. R. 606; State v. Thompson, 80 Me. 194, 6 Aih.. St R«^."'172. 250 THE LAW OF EVIDENCE preme court of the United States, was whether the court of claims did right or not in comparing a disputed signature with a signature on another paper which was in evidence for other purposes in the case, and respecting which latter signature there was no doubt as to its genuineness. And the supreme court held that the comparison was properly made. In the opinion Mr. Justice Brad- ley says, " We think that where congress has. not provided, and no special reason demands a dif- ferent rule, the rules of evidence as found in the common law ought to govern the action of the court of claims. If a more liberal rule is desir- able, it is for congress to declare it by a proper enactment. But the general rule of the common law, disallowing a comparison of handwriting as proof of signature, has exceptions equally as well settled as the rule itself. One of these ex- ceptions is, that. if a paper. admitted to be in the handwriting of the party, or to have been sub- scribed by him, is in evidence for some other purpose in the cause, the signature or paper in question may be compared with it by the jury."*'' § 20. Trend of the courts in the United States. — The trend of the courts in this country is to exteiid the common-law rule by admitting expert opinion testimony based upon a comparison with a specimen which is proved or admitted to be genuine, irrespective of the fact that it is not in evidence for any other purpose. 47. 91 U. S. 270. PROOF OF HANDWRITING 25 1 I 21. State statutes on the subject. — In a num- ber of the states, including New York, New Jer- sey, Iowa, Texas, Georgia, Rhode Island, Ore- gon and California, statutes, substantially in har- mony with the English statute, stated in § i6, have been enacted. § 22. Genuineness of the specimen used. — The genuineness of the specimen ' used with which the comparison is made must be estab- lished to the satisfaction of the court.** It has been held, however, that this is a matter which rests solely with the jury.*^ Upon principle, however, the admissibility of the opinion based upon the comparison is a question for the court to decide; and in doing so it takes into considera- tion the question of the genuineness of the specimen. To render the specimen usable for the pur- pose of comparison its genuineness. must be es- tablished by positive proof. As said in a Massa- chusetts case, it " must be shown beyond a doubt. "^^ The mere fact that a given letter was received in reply to one sent is not sufificient proof of the genuineness of the former to render 48. People v. Molineux, 168 N. Y. 264, 61 N. E. R. 286; Com. •^ Coe, lis Mass. 504; State v. Thompson, supra. 49. Sate v. Hastings, S3 N. H. 4S2, 461. See also, Sta;te v. Ward, 39 Vt. 22S. 'The latter court, however, seems subsequently to have adopted the contrary view. ' See, Rowell V. Fuller, S9 Vt. 688. 50. Martin v. Maguire, 7 Gray, 177. See also, Hyde v. Wool- folk, 1 la. 160. 252 THE LAW OF EVIDENCE it usable as a -specim'en- with which to compare another writing:^^ § 23. Rule where the specimen cannot be pro- duced.^Ordinarily, the comparison should be made by the expert in court. ®^ The specimen should be available so that other experts might be, able to give opinion based upon comparison, with the view, of impeaching or corroborating the former expert. But where it is not feasible to produce the specimen, as, for example, where it is lost, it has been held that an expert, who saw the specimen, may base his opinion on a com- parison of his recollection of it with the disputed writing,®^ This principle has been applied to en- tries in hotel registers,^* and to checks that can- not be produced where the defendant is on trial for forgery.''^ § 24 Comparison of ancient documents. — As previously stated, the rule at common law ex- cluded proof of handwriting by placing writings in juxtaposition and compairing them. To this rule there were two exceptions, both of which are still recognized. One of these e:!iceptions is stated in the last sentence in § 19 of this chapter. 51. McKeone v. Barnes, 108 Mass. 344., See. also,. Winch' v. Norman, 65 la. 186. 52. Woodman- v., Dana, 52 Me. ,9; Haynes v. McDeRnott, 82 N. Y, 41. ■ 53. Koons V. State, 36 Ohio St. 195; Abbott v. Coleman, 21 Kan. 250. 54. State V. Shinborn, 46 N. H. 497. 55. Koons V. State, supra. PROOF OF HANDWRITING 253 The other exception is stated by Mr. Best as^ follows : " When a document is of such a date that it cannot reasonably be expected to find liv- ing person's acquainted with the handwriting of the supposed writer, either by having seen him write or by having held correspondence with him, the law, acting ofi the maxim, lex non to git impossibilia, allows other ancient documents which are proved to have been treated and regu-' larly preserved as authentic, to be compared with the disputed one."^® § 25. Use of photographic copies for purpose of comparison. — Photographs have frequently been held admissible to give the jury a description of the locus in qub,^'' and 'also for the purpose of identifying a person.^* But a photographic copy of a signature or writing is secondary ' evidence ; and is inadmis- sible for the purpose of comparison, or for any other purpose, without first laying a proper fc(undation for using secondary evidence. If the original is available the photographic copy is in- admissible.^" " No authority see'ms to justify the 56. Best, Evid. (10th ed.) §240. See also, to same effect. Doe V. Suckertnore, 5 Adol. & Ell. 703 ; Clark v. Wyatt, 15 Ind. 271, 77 Am. Dec. 20 ; ' Sweigart v. Richards, 8 Pa. St. 436; Strothers v. Lucas, 6 Peters (U. S.) 763. See also, note, 6 Am. Dec. 171. 57. Randall v. Chase, 133 Mass, 210; Dyson v. New York, etc., Ry. Co., 57 Conn. 9; Barker- v. Perry, 67 la. 146. 58. Ruloff V. People, 45 N. Y. 213 ; Brooke v. Brooke,' 60 Me. 529. 59. Eborn v. Zunpelman, 47 Tex. 503. 254 THE LAW OF EVIDENCE proof of the handwriting of obtainable originals by any species of imitation or copy."*" " The original, and not the copy, is what the jury must act upon, and no device can be properly allowed to supercede it. Copies of any kind are merely secondary evidence, and in this case they (photo- graphic copies) were intended to be used as equivalent to primary evidence in determining the genuineness of the primary document."®^ On the other hand, where a proper foundation has been laid for the use of photographic copies of signatures or writings, and satisfactory proof has laeen made as regards the sufficiency and exactness of the process of producing them, they have been held competent for the purpose of making comparison. As said in a Massachusetts case, " Under proper precautions in relation to the preliminary proof as to the exactness and ac- curacy of the copies produced by the art of the photographer, we are unable to perceive any valid objections to the use of such proposed rep- resentations of original and genuine signatures as evidence competent to be considered and weighed by a jury."^^ But the mere fact that the photographic copies were made by a scientific process is not sufficient proof of their exactness. As said in a New York case, " We may recognize that the photographic process is ruled by general laws that are uni- 60; Maclean v. Scripps, 52 Mich. 214, 219. 61. Matter of Alfred Foster's Will, 34 Mich. 23. 62. Marcy v. Barnes, 16 Gray, 160. PROOF OF HANDWRITING 255 form in their operation, and that almost without exception a Hkeness is brought forth of the ob- ject set' before the camera. Still somewhat for exact likeness will depend upon the adjustment of the, machinery, upon the atmospheric condi- tions and the skill of the manipulator. And in so delicate a matter as the reaching of judicial re- sults by the comparison of writings thru the tes- timony of experts, it ought to be required that the witness should exercise his acumen upon the thing itself which is to be the basis of his judg- ment ; and still moire, that thing itself should be at hand to be put under the eye of the other wit- nesses for the trial upon it of their skill. The certainty of expert testimony in these cases is not so well assumed as that we can afiford to let in the errors or differences in copying, tho it be done by howsoever a scientific process."®^ § 26. Use of letterpress copies for purposes of comparison. — Letterpress copies of a signature or writing, for the purpose of comparison, are in- admissible. As said in a California case, " It would be adding vastly to the danger of such evidence (letterpress copies), to permit evidence to be given from a cornparison of genuine writ- ings with a press copy of the writing whose gen- uineness was in dispute."®* And as said in a Pennsylvania case, " Here there was merely a copy — a press copy, it is true — of the nature of a 63. Hynes v. McDermott, 82- N. Y. 41. 64. Spottisford v. Weir, 66 Cal. 525. 256 'THE LAW OF EVIDENCE fac-iimile/-^ hut not necessarily exact, as the spreading of ink in such copies often obliterates the fine lines of a handwriting, tho substkntially preservin'g its original form. It is manifest such copies would be an unsafe standard. I know of no authority for their introduction, and upon principle they are inadmissible."-' § 27. Use of fictitious specimens, on cross-ex- amination.— With the view of impeaching the credibility of an expert who has given opinion evidence of handwriting, attempts are sometimes made, against objection, to elicit from him, on cross-examination, his opinion as to the genuine- ness of real and fictitious specimens. This class of testimony, however, is, for several reasons, in- admissible. First, to admit such specimens would be to introduce collateral issues which would unduly complicate the case.'"'® Secondly, inas- much as the issues raised in such case would be collateral, and immaterial to the real issue in the case the answers by the witness would be con- clusive.®^ And thirdly, the introduction of such specimens would operate as a surprise to the party who called the witness, and consequently he would not be prepared to meet them.®^ In a New York case, in which an action was 65. Cohen v. Teller, 93 Pa. St. 123. 66. Massey v. Bank, 104 111. 327; Howard v. Patrick, 43 Mich. 121, 128; Rose v. First National Bank, 91 Mo. 399. 67. Van Wyck v. Mcintosh, 14 N. Y. 439; Dietz v. Fourth , Nat. Bank, 69 Mich. 287, 289. 68. Cases cited in foot-note 67. PROOF OF HANDWRITING 257 brought on a promissory note and the defense was that the signature was a forgery, an expert wit- ness was asked on his cross-examination which of thirty-three signatures submitted to him were genuine and which were not. An objection to this question was overruled. This ruling, how- ever, was held prejudicial error, v " It was not material to the issue to show whether any of those thirty-three signatures were genuine or_ false. . . . It is plain the signatures were prepared for the sole purpose of testing the skill of the witnesses. O'Neil's attention was called to them in the belief that he would not be able to pick out the genuine from the false. He ex- pressed his opinion . . . But how was it mater- ial whether those thirty-three signatures were genuine or not? The issue was as to the signa- tures to the note. Whether O'Neil was right or wrong as to the thirty-three signatures it did not aid in determining the real issue. It was a collateral issue, and if, by possibility, O'Neil could have been legally permitted or required to answer the question, his answer would have been conclusive upon the plaintiff. She could not afterwards call witnesses to contradict him on that collateral and immaterial issue."®® It has been held, however, that an expert may be asked on his cross-examination whether the writing in issue and another which is not admitted or 69. Hilsey v. Palmer, 32 Hun 472. 258 THE LAW OF EVIDENCE proved to be genuine are in the same handwrit- ing.^" § 28. Comparison of handwriting to prove identity of a person. — A comparison of different specimens of handwriting for the purpose of identifying a person has frequently been allowed. Thus, in actions for libel, sending threatening let- ters, arson, etc., this class of testimony has been admitted. In the celebrated Tichborn case this class of evidence was admitted. And also in the celebrated murder case of Com. v. Webster.''^ In the latter case the comparison was made for the purpose of showing that Webster was the author of certain anonymous letters the purpose of which letters was- to mislead the public offi- cials. 70. Thomas v. State, 103 Ind. 419. 71. Com. V. Webster, S Cush. (Mass.) 295, 52 Am. Dec. 711. PART III. Real Evidence. CHAPTER I. Inspection by Court and Jury. § I. In general. — The three channels thru which tribunals acquire information upon which to base their decisions are witnesses, documents and inspection. That acquired by inspection is called real evidence. It is evidence acquired by the court or jury thru the mediuni of their own senses of seeing, hearing, smelling, tasting, etc. This class of testimony is entitled to the greatest weight. As said by Robertson, C. J., " To a rational man of perfect organization the best and highest proof of which any fact .is susceptible is the evidence of his own senses. This is the ultimate test of truth, and is, therefore, the first principle in the philosophy of evidence."^ § 2. Admissibility of real evidence. — The ques- tion of admitting real evidence in a given case is one which rests largely in the discretion of the court. ^ When materially relevant to the fact in 1. Gentry v. McGitinis, 3 Dana (Ky.) 382, 386. 2. Leonard v. So. Pac. Ry. Co., 21 Oreg. SSS, 28 Pac. R. 887, IS L. R. A. 221 ; Marshall v. Gault, IS Ala. 682 ; State V. Phillips, 118 la. 660, 92 N. W. R. 876; People v. Sullivan, 129 Cal. SS7, 62 Pac. R. 101. 26o THE LAW OF EVIDENCE issue, and no sound reason exists for its exclu- sion, it should be admitted. As a general rule, the action of the trial court in admitting or excluding real evidence is not subject to review by a higher court.^ It has been held, however, that an unreasonable exercise of discretion is prejudicial error.* § 3. Origin of rule admitting real evidence. — The rule admitting real evidence is of ancient origin. As said by Prof. Thayer, " Nothing is older or commoner in the administration of law, in all countries, than the submission to the senses of the tribunal itself, whether the judge or jury, of objects which furnish evidence. . . Many of the things which were formerly submitted to the inspection of the judges only, have now passed over to the jury."^ § 4. When inspection is not allowed.^ — Courts usually reject real testimony where its nature is such as to unduly prejudice the jury by exciting either their sympathies,* or their antipathies;'^ 3. Knowles v. Crampton, 55 Conn. 336, 11 Atl. R. 593; Harris v. Ansonia, 73 Conn. 359, 47 Atl. R. 672. 4. French v. Wilkinson, 93 Mich. 322, 53 N. W. R. 530; Gen. Elec. Light, etc., Co. 107 Ky. 485, 54 S. W. R. 723; Mann v. Sioux City, etc., Ry. Co., 46 la. 637; Hunter v, Allen, 35 Barb. (N. Y.) 42; Philadelphia v. Rule, 93 Pa. St. 15. 5. Thayer's Cases on Evid. (2d. ed.) 720. 6. Rost V. Brooklyn Heights Ry. Co., 10 k. Y. App. Div. 477, 31 N. Y. Suppl. 1069, 4 N. Y. Annot. Cas. 19 (amputated leg). 7. Selleck v. Janesville, 104 Wis. 570, 80 N. W. R. 944, 76 Am. St. Rep. 892, 47 L. R. A. 691 (photograph). INSPECTION BY COURT AND JURY 26 1 or where it would unduly complicate the case with collateral facts f or where it is so offensive,^ or indecent/" as to shock the sensibilities ;*or where it would tend to mislead the jury;^^ or where it is too remotely connected with the fact in issue ;^^ or where it is so cumbersome as to unduly retard the case.^* § 5. Scope of real evidence. — The scope of this class of testimony is broad. It extends to all lines of human activity. It includes all classes of things which are material and legally relevant to the investigation. Thus, the following articles have been held to be competent real evidence : a horse ;^* a dog;^^ a door;^* a rope and an iron bar;^" a broken bolt;^® a broken stair ;^^ 8. McCtillooh V. Dobson, 133 N. Y. 114, 30 N. E. R. 641; Tudor Iron Works v. Weber, 129 111. 531, 21 N. E. R. 1078 (torn clothing). 9. Knowlea v. Crampton, SS Conn. 336, 11 Atl. R. 593. 10. Vierling v. Binder, 113 la. 337, 85 N. W. R. 621; Aspy v. Botkins, 160 Ind. 170, 66 N. E: R. 462; Warlick v. White, 76 N. C. 175. 11. Hagan v. Carr, 198 Pa. St. 606, 48 Atl. R. 688 (diagram) ; Stewart v. Everts, 76 Wis. 35, 44 N. W. R. 1092, 20 Am. St. Rep. 17; Com. v. Scott, 123 Mass. 222, 25 Am. Rep. 81. 12. Osborne v. Detroit, 32 Fed. R. 36. 13. Jackson v. Pool, 91 Tenn. 448, 19 S. W. R. 324; Jacobs v. Davis, 34 Md. 204. 14. Dillard v. State, 58 Miss. 368. 15. Line v. Taylor, 3 F. & F. 731. 16. People V. Durant, 116 Cal. 179, 48 Pac.'R. 75; State v. Goddard, 146 Mo. 177, 48 S. W. R. 82. 17. People V. Flarinigan, 174 N. Y. 355, 66 N. E. R. 988. 18. Boucher v. Robeson Mills, 182 Mass. 500, 65 N. E. R. 819. 19. Lynch v. Swan, 167 Mass. 510, 46 N. E. R. 51. 262 THE LAW OF EVIDENCE a piece of a car flange;^" a human skull ;^^ a watch ;^^ a speculum surgical chair ;^^ a mirror;^* torn clothing ;^^ defective building material ;^^ piece of column ;^^ bones of the deceased ;^^ burg- lars' tools ;^® stolen trousers;^" coal bucket ;^'- foot prints ;^^ mutilated members of deceased ;^^ various kinds of weapons f^ a young elephant f^ horse shoes f^ shingles f'^ defective fruit boxes f^ 20. Roberts v. Port Blakely Mill Co., 30 Wash. 25, 70 Pac. R. 111. 21. McNaier v. Manhattan Ry. Go., 4 N. Y. Suppl. 310 (to explain injuries) ; Savary v. State, 62 Neb. 166, 87 N. W. R. 34; Thrawley v. State, 153 Ind. 375, 55 N. E. R. 95. 22. Stone v. Boston, etc., Ry. Co., 72 N. H. 206, 55 Atl. R. 359. 23. Com. V. Brown, 121 Mass. 69. 24. Hudson v. Ross, 76 Mich. 173. 25. Tudor Iron Works v. Weber, 129 111. 535 ; Quincy Gas & Elec. Co. V. Bauman, 203 111. 295, 67 N. -E. R. 806. 26. People v. Buddensieck, 103 N. Y. 487, 57 Am. Rep. 766. 27. Linch v. Paris Lumber, etc.. Elevator Co., 80 Tex. 23, 15 S. W. R. 208. 28. Turner v. Sta.te, 89 Tenn. 547, 564. 29. Foster v. People, 63 N. Y. 619; State v. Ellwood, 17 R. I. 763. 30. Adams v. State, 93 Ga. 166, 18 S. E. R. 553. 31. Penn. Coal Co. v. Kelly, 156 111. 9, 40 N. E. R. 938 (mode p.f operation shown)'. 32. People v. Searcy, 121 Cal. 1, 53 Pac. R. 359, 41 L. k. A. 157; Wfaetsoo v. State, 31 Fk. 240, 12 So. R. 661. 33. Turner v. State, supra. 34. Spies V. People, 122 111. 236; Com. v. Brown, 121 Mass. 69; Sibley v. Smith, 133 Ind. 677. 35. 20 Alb. L. Journal, ISO. 36. Evarts v. Middlebury, 53 Vt. 626. 37. Morton v. Fairbanks, 11 Pick. (Mass.) 368. 38. Thomas Fruit Co. v! Start, 107 Cal. 206. INSPECTION BY COURT AND JURY 263 defective tow line f^ dressmaker's frame ■*° partly burned block of wood;*-^ a rotten plank ;*^ teeth of deceased;*^ underclothing;** a shovel,*^ etc. § 6. Repulsive or indecent real evidence. — Real testimony which is of doubtful utility and offensive in its nature is usually rejected.*® And circumstances may justify the rejection of real testimony because of its indecent nature. But the mere fact that certain real testimony savors of indecency does not justify its rejection. "When justice and the discovery of truth are at stake, the ordinary canons of modesty and delicacy of feeling cannot be allowed to impose a prohibi- tion upon necessary measures. If such matters were not unshrinkingly discussed and probed, 39. Stevenson v. Michigan Log Towing Co., 103 Mich. 412, 61 N. W. R. 536. 40. People v. Durant, 116 Cal. 179, 48 Pac. R. 75 (to ex'hibit clothes of muTdered woman). 41. Paulson v. State, 118 Wis. 89, 94 N. W. R. 771. 42. Viellesse v. Green Bay, 110 Wis, 16S, 85 N. W. R. 665. 43. Com. V. Webster, 5 Cusih. (Mass.) 295, 52 Am. Dec. 711. 44. State v.. Murphy, 118 Mo. 7, 25 S. W. R. 95 (rape case) ; State V. Peterson, 110 la. 647, 82 N.W.R. 329 (rape case). 45. Mitchell v. State, 94 Ala. 68, 10 So. R. 518. 46. Knowles v. Crampton, 55 Conn. 336, 341. See also. Com. V. Brelsford, 161 Mass. 61, 63 (jurors not allowed to sample intoxicating liquor) ; State v. Coggins, 10 Kan. 455 (jurors not allowed to exatnime and smell bottles of whiskey); Regina v. Palmer, Annual Register (1856) 422, 473, 475 (exhibition of effect. of strychnia on dogs not allowed). Contra: People v. Kinney, 124 Mich. 486 (jurors allowed to taste cider for purpose of learning whether it was "hard" or not). 264 THE LAW OF EVIDENCE many kinds of crime would remain unpunished. 'Nevertheless, needless offence to feelings of delicacy, especially by public exhibitions before idle spectators having no responsibility for the cause of justice, may well be avoided."*'' The modern tendency is to allow this class of testi- mony to go to the ]'tir)r, but in the absence of spectators not concerned in the issue. It has been held, however, that the court should not allow an indecent exposure 'of the person before the jury.*® § 7. Voluntary exhibition of bare parts of the body. — In personal injury cases this species of real testimony is frequently admitted." The ob- jection sometimes made to it is that in case of an appeal to a higher court this class of testi- mony could not be embodied in the bill, of excep- tions. But this objection is not considered ten- able. Another objection is that such testimony unduly excites the feelings of the jury. But in actions for personal injuries, it is the constant 47. Wigmore on Evid., vol. II, § 11 59. 48. Garrick v. Ry. Co. 124 la. 691 ; 100 N. W. R. 498 ; Guhl V. Whitcomb, 109 Wis. 69, 85 N. W. R. 142, 83 Am. St. Rep. 889. 49. Longworthy v. Gre«n, 95 Mich. 93, 96; Tudor Iron Works V. Weber, 129 III. 535 ; Brown v. Swineford, 44 Wis. 282, 28 .Km. Rep. 582; Anderson v. Seropian, 147 Cal. 201, 81 Pac. R. 521 ; Lanark v. Doug'berty, 153 111. 163, 38 N. E. R. 892 ; Arkansas Riv. Packet Co. v. Hobbs, 105 Tenn. 29, 58 S. W. R. 278; Keith v. New Hampshire, etc., Co., 140 Mass. 175, 180; Faivre v. Mahderscheid, 117 la. 724, 90 N. W. R. 76. INSPEGTION BY COURT AND JURY 265 practice for the plaintiff to voluntarily exhibit the injured part to the jury; and where identity, resemblance or the appearance of things is in question, it is a familiar practice to present such things for the inspection of the jury, if it is prac- ticable.^" Thus,- it has been held that in an action for damages for personal injuries caused by the defendant's negligence, the plaintiff may exhibit, for inspection by the jury, his hand;^'- leg;"^ foot;^* arni;^* eye-socket;^-'' a rupture ;^^ thumb ;^'' hip and spine ;^^ knee;^^ or other part of his body. Moreover, an expert may examine the injured member in the presence of the jury.*" 50. Jones on Evid., §398 (400). 51. People V. Kelly, 94 N. Y. 526; Imdiana Car Co. v. Parker, 100 Ind. 181. ' 52. Haynes v. Trenton, 123 Mo. 326, 27 S. W. R. 622; Lang- worthy V. Gr«en Tp., 95 Mich. 93, 54 N. W. R. 697 ; Mul-' hado V. Brooklyn City Ry. Co., 30 N. Y. 370; West Chicago St. Ry. Co. v. Grenell, 90 111. App. 30. 53. Edwards v. Three Rivers, 96 Mich. 625, 55 N. W. R. 1003; Louisville, etc., Rv. Co. v. Wood, 113 Ind. 544, 14 N. E. R. 572, 16 N. E. R. 197. 54. Lanark v. Dougherty, 153 111. 163, 38 N. E. R. 892; Hat- iield V. St. Paul, etc., Ry. Co., 33 Minn. 130, 22 N. W. R. 176, S3-Ani. Rep. 14. ' ' 55. Orscheln v. Scott, 90 Mo. App. 352. '' 56. Chicago; etc., Ry. Co. v. Clausen, 173 111. 100, 50 N. E. R. 680. 57. Freeman v. H,utchinson, 15 Ind. App. 639, 43 N. E. R. 16. 58.. Citizens' St. Ry. Co. v. Willoeby, 134 Ind. 563, 33 N. E. R- 627. , : , 59. Arkansas Riv. Packett Co. v. Hobbs, supra. 60. Lanark v. Dcfugherty, supra; Haynes v. Trenton, 123 Mo. 326, 27 S. W. R. 622. 266 THE LAW OF EVIDENCE It has been held, however, that in an action against a surgeon for malpractice, in setting a woman's knee another physician may not ex- amine the knee in the presence of the jury.®^ And a third party may not exhibit, for the inspection of the jury, his injured limb for the purpose of enlightening them in regard to the plaintiff's limb.^^ Such testimony would be irrelevant. On the ground of indecency, exhibition of the organs of generation for the inspection of the jury is not allowable. As said by Ryan, C. J., " If the condi- tion of any private part of the body of any party, male or female, is material on any trial, it shoiild be privately examined by experts out of courtj, and expert testimony be given of it."®^ § 8. Exhibition of child for inspection of jury •in a bastardy case. — Upon this question the de- cisions are not harmonious. Some courts reject this class of testimony, especially in the case of a mere baby, on the ground that it is too fanciful and unsatisfactory a character to be received."* By the great weight of authority, however, such 61. Aspy V. Botkins, 160 Ind. 170, 66 N. E. R. 462. 62. Grand Lodge B. of R. T. v. Randolph, 186 111. 89, 57 N. E. R. 882. 63; Brown v. Swineford, supra. 64. Ri.sk V. State, 19 Ind. 152; Clark v. Bradstreet, 80 Me- 456 (babe six weeks old) ; State v. Danforth, 48 la. 43, 30 Am. Rep. 387 (babe three months old) ; State v. Har- / vey, 112 la. 416, 84 N. W. R. 535, 84 Am. St. Rep. 350, 52 L. R. A. 500, and note (babe nine months old). See also Beck's Med. Juris. 650. INSPECTION BY COURT AND JURY 267 inspection is allowable."^ Lord Mansfield says, " I have always considered likeness as an argu- ment of a child's being the son of a parent."®* And Garrison, J., says, " Inspection is like admis- sion in that, while not testimony, it is an instru- ment for dispensing with the testimony, and, in a doubtful case, the class of testimony it dis- jDenses with might be a controlling circumstance. Thus regarded, and in view of the almost worth- lessness of the testimony of witnesses adduced on the question of the resemblance of a bastard to an alleged parent, it is obvious that inspection is, on this account, to be preferred."*'^ § 9. Inspection of person to determine age, race, color, identity, sex, credibility, intelligence, etc. — For the purpose of determining a person's age,"^ race,®^ color,'^" identity, '^^ sex,''^ credibil- 65. Linton v. State, 88 Ala. 216; State v. Horton, 100 N. C. 443 (indictment for seduction) ; Com. v. Jordan, 49 Ohio State 44S; Gaunt v. State, SO N. J. L. 490, 495; Scott v. Donovan, 153 Mass. 378, 26 N. E. R. 871 ; Kelly v. State, 133 Ala. 195, 32 So. R. 56, 91 Am. St. Rep. (babe a year old) ; Crow v. Jordan, 49 Ohio St. 655 ; State v. Smith, 54 la. 104, 37 Am. Rep. 192 (child two years old) ; State V. Saidell, 70 N. H. 174, 46 Atl. R. 1083, 85 Am. St. Rep. 627. 66. Douglas Case. See Wills' Circum. Evid. (5th Am. ed.)117. 67. Gaunt, v. State, supra (a celebrated case containing an extended. discussion on real evidence). 68. People v. Elco, 13 Mich. 519, 91 N. W. R. 755, 94 N. W. R. 1069; Hermann v. State, 73 Wis. 248, 41 N. W. R. 171, 9 Am. St. Rep. 789; Com. v. Emmons, 98 Mass. 6; Williams v. State, 98 Ala. 52, 13 So. R. 333. 268 THE LAW OF EVIDENCE ity/^ intelligence/* etc., the jury may, in the, dis- cretion of the trial judge, make an inspection of such person; and, in the case of a trial without a jury, the court may do likewise. Moreover, the court, in passing upon the competency of a per- son of tender years to act as a witness, may give consideration to his general appearance and in- telligence. '^^ Where a person is on trial for selling a minor intoxicating liquor, and the latter's age is in dispute, some courts hold that in a compar- atively close case the jury may not inspect the alleged minor for the purpose of determining the question.''® By the weight of authority, however, such inspection is allowable in the discretion of the trjal court.'^^ § 10. Inspection of photographs by the jury. — - The submission of photographs to the jury for their inspection is usually a matter that rests 69. Garvin v. State, 52 Miss. 207; Jones v. Jo'Des, 45 Md. 144; Warlick v. White, 76 N. C, 175. • 70. Garvin v. State, supra; Warlick v. White, supra; Staite v. Saidell, 70 N. H. 174; Clark v. Bradstreet, 80 Me. 454. 71. Williams' Case, 29 Fed. Cals. No. 17,709, Craibbe 243. 72. "Herman v. State, supra. ' '' 73. Com. V. Buccieri, 153 Pa. St. 535, 26 AtL R. 228; Walls v. Duchan-ne, 162 Mass. 432, 38 N. E. R. 1114. 74. Com. V. Robinson, 165 Mass. 426, 43 N. E. R. 121 ; State V. Juneau, 88 Wis. 180, 59 N. W. R. 580, 43 Am. St. Rep. 877, 24 L. R. A. 857; Wheeler v.. United States, .159 U. S. 523 ; State v. Richie, 28 La. Ann. 327, 26 Am. Rep. 100. 75. Cases cited in foot-note ,74. 76. Bird v. Stone, 104 Ind. 384. 77. Hermann v. State, 73 Wis. 248; Com: v. HoUis, 170, Mass. 433. INSPECTION BY COURT AND JURY 269 in the discretion of the trial court. Juries fre- quently have been allowed to inspect photo- graphs to acquire information pertaining to the loqus in quo. Thus, where a murder occurs in a given building and the plan of the building is a legally relevant evidentiary fact to the fact in issue, a photograph of the premises, which shows the plan, may, in the discretion of the court, be inspected by the jury. Again, where the char- acter of a wound is legally relevant to the issue a photograph of the wound may, in the discretion of the court, be inspected by the jury. Thus, in a murder case, where the deceased's throat was cut, and the body buried, the court allowed the jury to inspect a photograph of the wound. On appeal, the supreme court said: "The throat of deceased. was cut; the character of the wound was important to elucidate th^ issue; the man was killed and buried, and a description of the cut by witnesses must have been resorted to ; we cannot conceive of a more impartial and truthful witness than the sun, as its light, stamps and seals the similitude of the wound on the photo- graph put before the jury; it would be more ac- curate than the memor)^ of witnesses, and as the object of all evidence is to show the truth, why should not this dumb witness show it. Usually the photograph is introduced to prove identity of person, but why not to show the character of the wound? In either case it is evidence; it throws light on the issue. "''^^ Photographs of a writing are also admissible to prove its contents. 270 THE LAW OF EVIDENCE And especially so where the photograph is an enlarged one.'^® In such case the mode of proving the contents of the writing is not dissimilar to the examination with a magnifying glass. ^^ A photograph is inadmissible, however, where it would tend to unduly prejudice the minds of the jury. Thus, in an action for damages for the death of the plaintiff's wife, who was a handsome woman, and who was killed by defendant's train, a photograph of the woman was held inadmis- sible. A statute limited the recovery to pecuni- ary damages, and the court said : "The action was to recover for pecuniary injuries resulting from decedent's death. Such injuries are to be compensated for on the basis of the monetary value of the services of deceased to her husband and children. .Into such a case the personal ele- ment does not enter, for the law does not com- pensate for grief or sorrow, but only for the ac- tual pecuniary loss. The introduction in evidence of the. photograph of a handsome woman could not be expected to accomplish any other result than to introduce the personal element for the consideration of the jury."^^ And a photograph which is grossly indecent is inadmissible. Thus, in action for damages for personal injuries 78. Franklin v. State, 69 Ga. 36, 47 Am. Rep. 748. See also, Whart. Crim. Evid. S44; I Bish. Crim. Proc. 1097, and oases cited in the'm. 79. 1 Greenl. on Evid. (16th ed.) 439. 80. Marcy v. Barnes, 16 Gray (Mass.) 161. Bl.'Smith V. Lehigli Valley Ry. Co., 177 N. Y. 379, 384. INSPECTIOlSr BY COUFT AND JURY 2^1 caused by being struck by a train, photographs showing rear views of the plaintiff, a giri twenty years old, nude' from below the shoulders to mid-thighs, was held inadmissible on the ground of indecency. " Such photographic exposure of the body of a twenty-year old girl in a court rooni full of men is . . . grossly improper and shocking. . . No such indecency is ever neces- sary, or should be tolerated in court. If the con- dition of any private part of the body of any party, male or female, is material on any trial, it should be privately examined by experts out of court, and expert testimony given of it."*^ Nor by the weight of authority may a photographic reproduction of the genuine signature of a per- son, whose signature is in dispute, be used as a standard with which to compare the disputed signat'ure.*^ § II. Compulsory exhibition of articles for in- spection of the jury. — Compulsory exhibition of articles for the inspection of the jury is a matter which rests in the sound discretion of the court.^* While it has been held that the court may not be compelled to submit articles to the jury for inspection,^^ it also has been held that an unrea- sonable exercise of the court's discretion would 82. Guhl V. Whitcomb 'et al, 109 Wis 69. 83. Geer v. Lumber and Mining Co., 134 Mo. 8S, 9S, 98. See also, Hynes v. McDermott, 82 N. Y. .51. 84. Harris v. Ansonia, 73 Conn. 359, 47- Atl. R. 672. 85. Hunter v. Allen, 35 Barb. (N. Y.) 42 (watch in pocket). 272 THE LAW OF EVIDENCE be prejudicial error.^® Where the articles submitted for the inspection of the jury consitute the best testimony obtainable and are legally relevant to the issue, the jury should be allowed to inspect them, unless a reasonable ground exists for hold- ing otherwise.*^ § 12. Compulsory exhibition of injured parts of the body in civil cases. — Upon this question the decisions are not harmonious. The question has arisen frequently in personal injury cases. Many courts hold that in such cases the court may order an examination of the plaintiff's in- juries by a competent physician and surgeon f^ while other courts, in the absence of statutes, hold the contrary.^® In several states, including 86. Philadelphia v. Rule, 93 Pa. St. IS; French v. Wilkin- son, 93 Mich. 322, S3 N. W. R. S30 (limb of tree three years and four months after injury) ; Hughes v. Gen. Elec. Light, etc., Co., 107 Ky. 4SS, S4 S. W. R. 723. 87. Com. V. Holliston, 107 Mass. 232 (diagram). 88. White V. 'Milwaukee City Ry. Co., 61 Wis. 536, 21 N. W. , R. S24, SO Am. Rep. 1S4; Owens v. Kansas City, etc., Ry. Co. 95 Mo. 169, 8 S. W. R. 350, 6 Am. St. Rep. 39; Wanek v. Winona, 78 Minn. 98, 80 N. W. R. 581, 79 Am. St. Rep. 354, 46 L. R. A. 448; Sibley v. Smith, 46 Ark. 275, 55 Am. Rep. 584. Alabama, etc., Ry. Co. v. Hill, 90 Ala. 71, 8 So. R. 90, 24 Am. St. Rep. 764, 9 L. R. A. 442 ; Schroeder v. Chicago, etc., Ry. Co., 47 la. 375 ; Richmond, etc., Ry. Co, v. Childress, 82 Ga. 719, 9 S. E. R. 602, 14 Am. St. Rep. 189, 3 L. R. A. 808; Swift & Co. v. Rutkowski, 182 III. 18, 54 N. E. R. 1038; Hatfield v. Ry. Co., 33 Minn. 130, 22 N. W. R. 176, S3 Am. St. Rep. 14. 89. Union Pacific Ry' Co. v. Botsford 141 U. S. 250; Stack v. New York, etc., Ry. Co., 177 Mass. 155, 58 N. E. R. 686, INSPECTION BY COURT AND JURY 273 /' New York and' NeVright, 22 N. Y. 472; Merrifield v. Robbing, 8 Gray (Mass.) ISO. MODE OF PROVING DOCUMENTS .309 that the printed statutes of the sister states are . admissible where it is shown that they are ad- mitted in the particular state in which they were enacted, or purport to be printed by public au- thority.'® Statutes, like other records, may also be proved by sworn copies.^'' § II. Presumptions as to enactment. — In the absence of proof to the contrary an enrolled pub- lic statute, or an'act signed by the governor, de- posited with the secretary of state, and pub- lished as a law, is presumed to be valid. ^^ In such case all necessary formalities, such as passage by a constitutional majority;^* taking vote by yeas and nays;*" suspension of the rules f^ publication as required by law,®^ etc., are presumed to have been performed. In England, where there is no written consti- tution, parliament is supreme ; and when an act of parliament is enrolled it is conclusively pre- sumed to be valid and cannot be impeached.** 56. Bride v. Clark, 161 Mass. 130; Wilt v. Cutler, 38 Midi. 189; Eagan v. ConnelJy, 107 111. 458; Meracle v. Down, 64 Wis. 323. 57. Ennis v. Smith, 14 How. (U. S.) 400. 58. Detroit v. Detroit Board of Assessors, 91 Mich. 78, 51 N. W. R. 787, 16 L. R. A. 59; Erford v. Peoria, 229 111. 546, 82 N. E. R. 3'74. ,59. People V. Chenango County, 8 N. Y. 317. 60. State v. Rogers, 22 Oreg. 348, 30 Pac. R. 74. 61. State V. Peterson., 38 Minn. 143, 36 N. W. R. 443. 62. Welch V. Battern, 47 la. 147. 63: Rex V. Jeffries, Str. 446, 93 Eng. Reprint 626 ; Rex v. ArimdeT, Hob. 109, 80 Eng. Reprint, 258. 3IO. THE LAW OF EVIDENCE In that country a public act is enrolled by being copied on the roll of parliament; and a private act is enrolled by depositing- it with the clerk of parliament.^* In- this country an act is enrolled when it is signed by the presiding officers of both houses of the legislature and deposited with the secretary of state. ''^ In some, states the courts hold that an enrolled act is conclusively pre- sumed to be valid and cannot _be impeached. ®® In other- states the courts hold that there is only a prima facie presumption of its validity, and that evidence is admissible to show that it was not passed in due form and in harmony with consti- tutional provisions."'^ § 12. Mode of proving the common law. — The usual mode of proving the common law of Eng- land is by expert testimony.*^ It is not essential that the expert be a lawyer or a jurist. He may be a stock broker,^^ a Roman Catholic bishop, '''° 64. Weeks v. Smith, 81 Me. 538, 18 Atl. R. 325. 65. Weeks v. Smith, supra. 66. Harwood v. Wentworth, 4 Ariz. 378, 42 Pac. R. 1025, 162 U. S. 547; Fouke v. Fleming, 13 Md, 392 (This case holds' that the enrolled act is better evidence of the subject mat- ter of a statute than the journals of both houses). 67. Ex Parte Kelly, 153 Ala. 668; Illinois Cent. Ry. Co. v. People, 143 111. 434, 33 N.E. R. 173, 19 L. R. A. 119; Ritchie v. Richards, 14 Utah, 345, 47 Pac. R. 670.: 68. Barber v. Hildebrand, 42 Neb. 400, 60 N. W. R. 594;, Ennis V. Smith, 14 How. (U. S.) 400. 69. Vander Douckt v. Thellusson, 8 C. B. 812. 70. Sussex Peerage Case, 11 Clark & F. 134; Massucco "v. Tomassi, 78 Vt. 188, 62 Atl. R. 57. MODE OF PROVING DOCUMENTS 3I I etc., provided he is sufficiently conversant with the law involved in this issue. The common law of a sister state rnay also be proved by expert testimony. In many states there are statutes which provide that it may be proved by the authorized printed reports of de- cisions; and in a few states this mode of proof has been upheld in the absence of statutes.''^ § 13. Mode of proving statutory foreign law. — A statutory foreigri law may be proved by a properly authenticated copy, by an examined copy verified under oath, or by an exemplified copy under the great seal of the state. As said by the supreme court of the United States, "for- eign statutes may be verified by an oath, or by~ an exemplification of a copy under the great seal' of the state, or by a copy proved to be a true copy by a witness who has examined and com- pared it with the original, or by the certificate of an officer, properly authorized by law to give the- copy, which certificate must be duly proved. "''^^ § 14. Printed volumes of statutes of sister states. — Although congress has prescribed the mode in which the statutes of a state shall be proved, ^^ printed volumes of statutes of sister states, published by authority, are admissible to- 71. Ely V. James, 123 Mass. 36; Brush v. Scribner, 11 Conn, 388, 29 Am. Dec. 303. 72. Ennis y. Smith, 14 How. (U. S.) 400. See also note 113 Am. St. 'Rep. 883. 73. U. S. Rev. Stat. (1878), §905, U. S. Comp. Stat. (1901) 677. 312 THE LAW OF EVIDENCE prove those statutes.^* Unauthorized editions printed by private persons are usually inadmissi- ble;'^^ even where they contain a printed certifi- cate of the secretary of state that they are corr rectly transcribed^^* In some states parol evi- dence is inadmissible to prove the statutes of a sister state ■J'' white in other states expert testi- mony has been held admissible to prove their existence and meaning.''^ § 15. Admissibility of legislative journals. — In some states legislative journals are not adtnis- sible to impeach either the contents'^® of an en- rolled statute, or the validity of its passage.^" In those states the enrolled act is considered con- clusive. This is owing to the fact that the cer- tificate of,the presiding officers of the two houses is treated as the best evidence that constitutional 74. Eagan v. Connelly; 107 111. 458 ; Wilt v. Cutler, 38 Mich. 189; Clanton v. Barnes, 50 Ala. 260. 75. Packard v. Hill, 2 Wend. (N. Y.) 411; Mag«e v. San- derson, 10 Ind. 261. 76. Goodwin v. Provident Sav. Loan Assur. Assoc., 97 la. 226, 66 N. W. R. 157, 59 Am. St. Rep. 411, 32 L. R. A. 473. 77. Zimmerman v. Helser, 32 Md. 274 ; Comparet v. Jeraegan, 5 Blackf. (Ind.) 375. See also People v. Lambert, 5 Mich. 349, 72 Am. Dec. 49 (In this case the testimony of a policeman and constable of New Jersey was (held inad- missible to prove the statutes of that state.). 78. Raynham v. Canton, 3 Pick. (Mass.) -293; Chattanooga, etc., Ry. Co. x. Jackson, 86 Ga. 676, 13 S. E. R. 109. 79. Fouke V. Fleming, 13 Md. 392; Mason v. Cranbury Tp., 68 N. J. L. 149, 52 Atl. R. 568. 80. Hovey V. State, 119 Ind. 395, 21 N. E. R. 21; People v. Burt, 43 Cal. 560 ; Harwood v. Wentworth, 162 U. S, 547. MODE OF PROVING DOCUMENTS 313 requireriieots have been met ;*^ and the further fact that admitting the journals would give rise to much confusion and uncertainty as to the validity of the statute.*^ In other states there is a prima facie presumption that the enrolled act filed with the secretary of state was passed in due form ; but the presumption is not con- clusive.*^ § 16. Formalities prescribed by federal statute for proving judicial records of sister states. — In 1790 congress passed an act which provides that the records and judicial proceedings of the courts of any state or territory or of any country subject to the jurisdiction of the United States shall- be proved and 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 that the said attestation is in due form. The act also provides that the said records and judicial proceedings so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken.** By this 81. See cases cited in foot-note 80. 82. Weeks v. Smith, 81 Me. 538, 18 Atl. R. 325 ; Sherman v. Story, 30 Cal. 253, 89 Am. Dec. 93; Pangborn v. Young, 32 N. J. L. 29. 83. Illinois Cent. Ry. Co. v. People, 143 111. 434, 33 N. E. R. 173, 19 L. R. A. 119. 84. U. S. Rev. Stat. (1878), §905, U. S. Comp. Stat. (WOl) 667. 314 THE LAW OF EVIDENCE federal statute the records and judicial proceed- ings of a court of another state or territory, when properly authenticated as provided by the stat- ute, must be admitted.^" A court of a sister state that has a presiding judge, a clerk and a seal, is presumed prima facie to be a court of record.^® Moreover, its duly authenticated records are not only admissible to prove their contents, but also to show, prima facie, the jurisdiction of the court, both as to the parties to the suit and as to the subject matter.^^ § 17. Same. Requirements of statute as to attestation. — The statute requires that the attes- tation by the clerk shall be in accord with the form that is used in the state from which the attested document comes. It does not prescribe the form of the attestation.^* The sole proof that it is in accord with the form used in the state from which it comes is the certificate of the pre- siding judge. And this is conclusive.*® It is not essential that the clerk's certificate show that the 85. Taylor v. Heitz, 87 Mo. 660; Horner v. Spelman, 78 111. 206; Friend v. Miller, 52 Kan. 139, 34 Pac. R. 397, 39 Am. St. Rep. 340; In re Ellis, 55 Minn. 401, 56 N. W. R. 1053, 43 Am. St. Rep. 514, 23 L. R. A. 287. 86. Hughes v. Harris, 2 Ala. 269. 87. Brown v. Mitchell, 88 Tex. 350, 31 S. W. R. 621, 36 L. R. A. 64; Manning v. Hogan, 26 Mo. 570; Coughran V. Gilman, 81 la. 442, 46 N. W. R. 1005. 88. Simons v. Cook, 29 la. 324; White v. Strother, 11 Ala. 720; Grover v. Grover, 29 la. 324. 89. Cases cited in foot-note 88. MODE OF PROVING DOCUMENTS 3I5 court is a court of record.^" Nor that he is custod- ian of the court records. ^^ The requirements of the federal statute are that the transcript of the record be attested by the clerk, that the seal of the court, if there be one, be annexed to it, and that the judge, chief justice, or presiding magis- trate, certify that the clerk's attestation is in due form. But if the transcript is incomplete, or shows defects in the original record, it may be rejected. ^^ § 18. By whom the transcript may be attested. — The statute prescribes that the attestation be made by the clerk; and the courts generally hold that an attestation by a deputy, or any other person acting as a substitute, is not valid. ^^ It has been held, however, that an attestation by a deputy in the name of the clerk is valid.®* The fact that a state statute provides that a deputy clerk may perform the duties of the clerk does not effect the general rule above stated.^® Where the judge is also ex-officio clerk he may act in both capacities. In such case, however, he should 90. The Thames v. Erskine, 7 Mo. 213. 91. Ritchi* V. Carpenter, 2 Wash. 512, 28 Pac. R. 380, 26 Am. St. Rep. 877 ; Kingman v. Cowles, 1D3 Mass. 283. 92. Shilling V. Seigle, 207 Pa. St. ,381, S6 Atl. 957; West Feliciana Ry. Co. v. Thornton, 12 La. Ann. 736, 68 Am. Dec. 778. 93. Willock V. Wilson, 178 Mass. 68, 59 N. E. R. 757; Kansas Pac. Ry. Co. v. Cutter, 19 Kan. 83. 94. Stemke v. Graves, 16 Utah 293, 52 Pac. R. 386. See also, Greasons v. Davis, 9 la. 219. 95. Willock V. Wilson, supra; Lothrop v. Blake, 3 Pa. St. 483. 3l6 THE LAW. OF EVIDENCE certify in each capacity.®® It hasbeen held, how- ever, that this requirement is a matter of form rather than of substance.®'^ § 19. Annexing the seal. ■ — The statute re- quires that the seal of the court, where there is one, be annexed to the clerk's attestation of the transcript of the record."^ Annexing it to the judge's certificate authenticating the attestation of the clerk does not satisfy the requirement of the statute."® § 20. Judge's certificate as to the form of the clerk's attestation. — The statute prescribes that the clerk's attested transcript of the record shall be accompanied by a certificate of the presiding judge showing that the attested transcript is ex- ecuted in due form.^*"' It is not essential to set out the form of the attestation.^ Nor is it essen- tial that the certificate of the judge show that the person who makes the attestation is the clerk of the court. ^ Nor that the seal annexed to the attestation is the seal of the court. ^ It is sufifici- 96. Rowe V. Barnes, 101 la. 302, 70 N, W. R. 197. 97. Keith v.' Stiles, 92 Wis. IS, 64 N. W. R. 860, 65 N. W. R. 860. 98. McFarlane v. Harrington, 2 Bay (S. C.) SSS ; Allen v. Thaxter, 1 Blackf. (Ind.) 399. 99. Kirschner v. State, 9 Wis. 140. 100. Westerman v. Sheppard, 52 Neb. 124, 71 N, W. R. 950; Smith V. Brockett, 69 Conn. 492, 38 Atl. R. 57. 1. Regan v. McCormick, 4 Harr. (Del.) 435. 2. Haynes v. Cowen, IS Kan. 637. 3. Duncommun v. Hysinger, 14 111. 249; Linch v. McLeniore, 15 Ala. 632. MODE OF PROVING DOCUMENTS 317 ent that the certificate shows that the attestation of the clerk is executed in due form. The certifi- cate should show that the judge who signed it is the sole or presiding judge. But where this fact is shown by the record, omitting to state it in the judge's certificate is not material.* Where the certificate of the judge, or the at- testation by the clerk, shows that the court com- prises more than one judge it should appear that the certificate is signed by the chief justice or presiding magistrate.' But where there is noth- ing in the attestation of the clerk or in the judge's certificate to show that there is more than one judge of the court the presumption that there is only one judge is generally held to be sufficient on this point." § 21. Scope and application of the federal stat- ute. — The statute under discussion is appHcable not only to judgment records but also to all other matters included in the term " judicial proceed- ings."''^ It embraces records of courts of chan- cery,^ and records of probate courts.^ As regards 4. Ohio V. Hinchman, 27 Pa. St. 479. 5. Randall v. Burtis, 57 Tex. 362; Van Storch v. Griffin, 71 Pa. St. 240. 6. Wilock V. Wilson, supra (certrf. stated that he was the , judge) ; People v. Smith, 121 N. Y. 578, 24 N. E. R. 852; Low V. Burrows, 12 Cal. 181. 7. Virginia v. Himel, 10 La. Ann. 185 ; in re Rooney, 20 Fed. Cas. No. 12,032. 8. Patrick v. Gibbs, l7 Tex. 275; Burtners v. Keran, 24 Gratt. (Va.) 42, 3l8 THE LAW OF EVIDENCE the records of justices of the peace, some courts hold that where the court is a court of record the statute apphes. Even where the justice of the peace has no clerk or seal.-'-^ But where the court is not a court of record the decisions hold the contrary.^^ The records of a justice of the peace may be proved by a sworn copy/^ or by a copy that is authenticated in the mode foreign judg- ments are authenticated.-'^^ They may also be proved by introducing the original records prop- erly verified.-^* Many courts hold that the .stat- ute is not applicable to the federal courts. -^^^ § 22. Mode of proving documents and records not appertaining to a court. — " All records and exemplifications of books, which may be kept in any ptiblic office of any state or territory, or of any county subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other state or terirtory, or in such county, by the attestation of the keeper of the said rec- ords or books, and the seal of his office annexed, 9. Atwood V. Buck, 113 111. 268; Wilt v. Cutler, 38 Mich. 189; Grimes v. Smith, 70 Tex. 217, 8 S. W. R.. 33. 10. Blodgett V. Jordan, 6 Vt. 680; Bissell v. Edwards, S Day (Conn.) 363, 5 Am. Dec. 166. 11. Sloan V. Wolfsfeld, 110 Ga. 70, 35 S. E. R. 344; Draggo V. Graham, 9 Ind. 212 ; Warren v. Flagg, 19 Mass. 448, 449. 12. Winham v. Kline, 11 Mo. App. 36. 13. Duvall V. Ellis, 13 Mo. 203. 14. Kean v. Rice, 12 Serg. & R. (Pa.) 203. 14a. Kingman v. Cowles, 103 Mass. 283 ; McGregor v. Hamp- ton, 70 Mo, App. 98. MODE OF PROVING DOCUMENTS 319 if there be a seal, together with a certificate of the presiding justice of the court of the county, parish, or district in which such office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal, of the state, or territory, or county, that the said at- testation is in due form, and by the proper offi- cers. If the said certificate is given by the pre- siding justice of a court, it shall be further au- thenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding jus- tice is duly commissioned and qualified; or, if given by such governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the state, territory, or county afore- said in which it is made. And the said records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law of usage in the courts or offices of the state, territory, or country, as aforesaid, from which they are taken. "^^ §23. Same. Application of .the foregoing statute. — The term " records," as used in the foregoing statute, includes all documents of a public nature which the party has a riglit to in- spect, and which would give rise to inconveni- ence in transferring the same.-^® The statute has 15. U. S, R€v. Stat. (1878), §906, U. S. Comp. Stat. (1901) 677. 16. Chase v. Caryl, S7 N. J. L. S4S, 31 Atl. R. 1024. 320 THE LAW OF EVIDENCE been held to apply to records of conveyances and mortgages of lands ;^^ marriage certifi- cates ;^^ marriage licenses ;^^ powers of attor- ney;*" transfers of personalty,*^ etc. It also has been held to apply where the purpose is to prove the date of recording a deed of lands.** On the other hand, the statute is not applicable where copies of the records are inadmissible in the state where the records are made, or where the evi- dence fails to show that they are admissible there.*^ Nor is it applicable to unauthorized rec- ords.** It should also be observed that the provisions of the statute in regard to the mode of authenti- cation of the office copies must be complied with to render the copies admissible.*^ 17. Chase v. Caryl, supra; Dunlap v. Daugherty, 20 111. 397; Garrignes v. Harris, 17 Pa. St. 344. 18. People V. Perriman, 72 Mich. 184, 40 N. W. R. 42S; State V. Horn, 43 Vt. 20. 19. King V. Dale, 2 111. 513. 20. Rochester v. Toler, 4 Bibb (Ky.) 106. 21. James v. Kirk, 29 Miss. 206; Bruce v. Smith, 3 Harn & J. (Md.) 499. 22. Schweigel v. L. A. Shakmaii' Co., 78 Minn. 142, 80 N. W., R. 871, 81 N. W. R. 529 (In this case the lands were in one state and the record of a certified copy of the deed was in another state). 23. Munkers v. McCoskill, 64 Kan. 516, 68 Pac. R. 42; Clardy V. Richardson, 24 Mo. 295. 24. Martin v. Martin, 22 Ala. 86. 25. Taylor v. McKee, 118 Ga. 874, 45 S. E. R. 672 (clerk's certificate thalt the judge is qualified essential) ; Paca v. Dutton, 4 Mo. 371 (omission of certificate of presiding MODE OF PROVING DOCUMENTS 32 1 § 24. Mode of proof provided by statute not exclusive. — The mode of proof provided by the federal statute is not. exclusive. Moreover, it does not abrogate any other mode of proof.^® § 25. Mode of proving state records in federal courts. — State records are provable in a federal court sitting in another state when authenticated according to the mode provided in, the federal statute cited in foot-note 15,^^ Where the federal court is sitting in the state where the records are made they are provable by the certificate of the clerk with the seal annexed.^* §,26. .Mode of proving foreign public records. —In some states there are statutes which provide modes by which foreign public records are prov- able. In the absence of such statutes, the rec- ords are provable by any evidence that legiti- mately tends to prove that the document offered is in fact certified by the official custodian of the original of which it purports to' be a copy, and .■ judge ifliat attestation of clerk is in due' form) ; Phillips v. Flint, 3 La. 146 (attestation not under seal), 26. Good'wyn v. Goodwyn, 25 Ga. 203 ; Pabst Brewing Co. v. Smith, 59 Mo. App,-,476; Hall v. Bishop, 78 Ind. 370 (sworn copy admissible) ; Smith v. Strong, 14 Pick. (Mass.) 128 (sworn copy) ; Louisville, etc., Ry. Co. v. Shiresi 108 111. 617; Karr v. Jackson, 28 Mo. 316. 27. United State? v. Biebush, 1 Fed. R. 213, 1 McCray, 42. 28. TurnbuU v.Payson, .95 U. S. 418, 24 L. ed. 437; Mewster V. Spalding, 17 Fed. Cas. No. 9513, 6 McLean 24. 322 THE LAW OF EVIDENCE that he has due authority to make such certifi- cates.^^ § 27. Mode of proving federal legislative jour- nals. — By an act of congress " extracts from the journals of the senate or the house of representa- tives, and of the executive journal of the seriate, when the injunction of secrecy is removed, cer- tified by the secretary of the senate or by the clerk of the house of representatives, shall be ad- mitted as evidence in the courts of the United States, "and shall have the same force and effect as the originals would have, if produced and au- thenticated in court. "^° § 28. Mode of proving proclamations, etc. — " Proclamatitjns 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 public documents transmitted to con- gress by the president of the United States, and printed by the printer to congress are evidence of those documents. "^^ § 29. Mode of proving the contents of official registers, etc. — Mr. Stephen says " An entry in any record, official book or register kept in any state, or at sea, or in any foreign country, stat- 29. 17 Cyc. 360. See also, Barber v. Mexico International Co., 73 Conn. 587, 48 Atl. R. 758; Mauri v. Heffernan, 13 Johns. (N. Y.) 58. 30. U. S. Rev. Stat. § 895, U. S. Comp. Stat. 1901, p. 673. 31. Greenl. Evid., §479. See also. Post v. Supervisors, 105 U. S. 667; notes, 58 Am. Dec. 754.. MODE OF PROVING DOCUMENTS 323 , ing, for the purpose of being referred to by the public, a fact in issue or relevant, or deemed to be relevant thereto, and made in proper time by any person in the discharge of any duty imposed upon him by the law of the place in which such record, book or register is kept, is itself deemed to be a relevant fact."*^ Such official books or registers include, among others, registers of births, marriages and deaths ;^^ custom-house revenue books ;^* land tax assessments;^^ official prison books ;** official log-books;" official books containing records of the weather;^* official books containing records of legislative votes ;^'' post-office records of registered letters ;*" regis- tries of deeds and mortgages ;^^ school records of attendance f^ records of baptism ;*^ records of town officers as to receipts and disbursements ;** 32. Steph. Dig. Evid., art, 34 33. Jacobi v. Order of Germania, 26 N. Y. S. 318; Sumner V. Sebec, 3 Me. 223 ; Doe v. Barnes, 1 Moody & Rob. 386. 34. Johnson v. Ward, 6 Esp. 487. 35. Doe V. Sea'ton, 2 Adol. & EU. 178. 36. Salte v. Thomas, 3 Bos. & P. 188. 37. D'Israeli v. Jowett, I Esp. 427. 38. Evanston v. Gunn, 99 U. S. 660; Knott v. Raleigh Ry. Co., 98 N. C. 73, 2 Am. St. Rep. 321 ; Hart v. Walker, 100 Mich. 406. 39. Reed v. Lamb, 29 L. J. (Exch.) 4S2. 40. Gurney v. Howe, 9 Gray (Mass.) 404, 69 Am. Dec. 299. 41. Conway v. Case, 22 111. 127. 42. Thurston v. Luce, 61 Mich. 292. 43. Durfee v. Abbott, 61 Mioh. 471. 44. Thornton v. Campton, 18 N. H. 20. 324 THE LAW OF EVIDENCE records of the state reformatory;*^ records of cit)' ordinances,*® etc. § 30. Mode of proving federal court records. — The relation which federal courts sustain toward one another is domestic rather than foreign. For this reason the U. S. Rev. Stat., § 905, which provides a mode for proving the judicial records of the sister states is not applicable to the rec- ords of the federal courts.*'' The records of one federal court are provable in another federal court by means of a transcript of the records duly certified by the clerk of the court whose certificate has the seal of the court annexed. §31. Proving judicial records by authorized officers. — Statutes exist in nearly all the states which provide for the making of copies of rec- ords by particular officers; and copied made by such officers and certified to by them are admis- sible in evidence. This kind of a copy, like a sworn copy, does not require a seal annexed. § 32. Proving judicial records by means of sworn copies. — Any competent witness who has compared a copy of a judicial record with the original may testify to the correctness of the copy; and this testimony, together with 'proof that the original record was in the proper cus- 45. People v. Kemp, 76 Mich. 410. 46. Com. V. Ohase, 6 Citsh. 248. 47. Morgan v. New York Nat'l, etc., Assoc, 73 Conn. 652 ; McGregor v. Hampton, -70 Mo. App. 98; Kingman v. Co-wles, 103 Mass. 283. MODE OF PROVING DOCUMENTS 325 tody, renders the copy admissible. It is essen- tial, however, that the proper custody of the original be established by evidence de hors the transcript. ' § 33. Mode of proving judicial records by the clerk of the court.-^A judicial record may be proved by a transcript thereof, accompanied by a certificate of the clerk of the court with the seal of the court annexed thereto, stating that the transcript is a full, complete and true copy of the record which is in his custody by authority of law. § 34. Mode of proving quasi-judicidl records. — Quasi-judicial records are proved either by producing the original records or properly cer- tified copies. Such records comprise " the re- sults of inquiries made under public authority concerning matters of public or general interest, though the affairs to which they relate are priv- ate. They are generally the conclusions of jui"- ies, coroners, commissioners or other officers under oath, and often, though not necessarily, based on evidence taken under oath." § 35. Attested documents. — Attestation is the act of witnessing a, document at the request of the maker and svibscribing it as a witness. An attested document is one that is subscribed, by one or more witnesses. An attesting or sub- scribing witness, as defined by Dr. .Greenleaf, "is one who was present when the instrument was executed, and who, at that time, at the request and with the assent of the party, subscribed his 326 THE I.AW OF EVIDENCE 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 procurement of the other party. But it is not necessary that he should have actually seen the party sign, or have been present at the very moment of signing; for if he is called in imme- diately afterwards, and the party acknowledges his signature to the witness, and requests him to attest it, this will be deemed part of the transac- tion, and therefore a sufificient attestation."*^ § 36. Mode of proving attested documents. — At common law, a general rule has existed from early times that in proving an attested document it is essential, to call at ^east one of the subscrib- ing witnesses. Several reasons have been as- signed for this rule. One is that the parties to the document, at the time of its execution, agrees that in case it becomes necessary to prove its execution the subscribing witness, or at least one of them in case of more than one, should first be called. As said by Pollock, C. B., " The attesting witness must be called to prove the ex- ecution of a deed for this reason, that by an im- perative rule of law the parties are supposed to have agreed inter se that the deed shall not be 48. Greenl. Evid. § S69a.- See also, Cussons v. Skinner, 11 M. & W. 168. MODE OF PROVING DOCUMENTS 327 given in evidence without his being called to depose to the circumstances attending its exe- cution."*^ And as said by Cresswell, J;, " It is not on the ground that his is the best evidence. . . . but because he is the witness agreed upon between the parties."^" Another reason assigned for the rule is that the adverse party should be afforded an opportunity to cross-examine the at- testing witness. As said by Le Blanc, J., " A fact may be known to the subscribing witness not within the knowledge or recollection of the obligee, and he is' entitled to avail himself of all the knowledge of the subscribing witness rela- tive to the transaction."^^ Each of the foregoing reasons, however, as- signed for the rule is weak; and each has given rise to much criticism. Burket, J., in. comment- ing upon the former, says, " This supposed mut- ual agreement is a pure fiction, and rarely, if ever, exists in fact. If in any case it has a real existence, and can be shown, it may perhaps be enforced; but the mere fiction is entitled to no weight and to no respect."®^ And Spencer, J., in commenting upon the same reason for the rule, says, " The notion that the persons who at- test an instrument are agreed upon to be the only witnesses to prove it is not comportable to the truth of transactions of this kind, and, to speak 49. Whyraan v. Garth, 8 Exch. 803. 50. Gerapulo v. Wieler, 10 C. B. 690, 696. 51. Call V. Dunning, 4 East 54. 52. Garrett v. Hanshue, S3 Ohio St. 482. 328 THE LAW OF EVIDENCE with all possible delicacy, is an absurdity."^^ As regards the latter of the two reasons' for the rule stated above, the chief criticism has been that in most cases the attesting witnesses have no ma- terial knowledge of the transactions. But not- withstanding the criticisms of the rule it has been recognized very generally.®* § 37. Scope of the rule. — The scope of the common-law rule which requires, that an attest- ing witness be called is broad. It is applicable to documents under seaP® and to those not under seal.'*'' Moreover, it has been held to be applic- able to documents not required by law to be at- tested,®'' as well as to those required to be attest- ed. It has been .held to apply to contracts for the sale of land;®* deeds of land;®' promissory notes;®** bills of sale;®^ articles , of copartner- 53. Hall V. Phelps, 2 Johns. (N. Y.) 451. 54. Howard v. Russell, 104 Ga. 230, 30 S. E. R. 802; Hannan V. Greenfield, 36 Oreg. 97, 58 Pac. Rl 888; Collins v. Sherbet, 114 Ala. 480, '21 So. R. 997; Foye v. Leighton, 24 N. H. 29. . , 55. International, etc., Ry. Co.' v. McRae, 82 Tex. 614, 18 S. W. R. 672, 27 Am. St. Rep. 926; Clarke v. Courtney, 5 Pet. (U. S.) 319. 56. Townsentd v. Covington, 3 McCord (S. C.) 219; Bennett v. Robinson,- 3 Ste*. & P. (Ala.) 227. 57. Grannone v. Fleetwood, 93 Ga. 491, 45 Tex. 567. 58. Townsend v. Covington, supra. 59. Woodman v. Segar, 25 Me. 90; Ellis v. Doe, 10 Ga. 253; Allred v. Elliott, 71 Ala. 224. 60. Labarthe v. Gerbeau, 1 Mart. N. S. (La.) 486. 61. Horton v. Hagler, 8 N. C. 48. MODE OF PROVING DOCUMENTS 329 ship;®^ applications for insurance;®^ submissions and awards;** chattel mortgages;®^ leases;*® re- ceipts;*'^ releases;*® contracts of agency;*® no- tices to quit/* etc: The rule has ben held to ap- ply to a document executed by a person unable to writeJ^ And also where the subscribing wit- ness is blind ;^^ or where the document has been cancelled;'^ or destroyed by fire and the sub- scribing witnesses are not known.'''' It is also applicable to a forged document as well as to a genuine one.^° Where one of two subscribing witnesses to a document is incompetent to testify the other must be called/* The fact that the alleged maker of the document has admitted that he executed 62. Tarns v. Hitner, 9 Pa. St. 441. 63. Read v. Metropol. L. Ins. Co., 17 Misc. (N.Y.) 307, 40 N. Y. Suppl. 374. 64. Tyler v. Stepliens, 7 Ga. 278. , 6S. Jones v. State, 113 Ala. 95, 21 So. R. 229. 66. Barry v. Ryan, 4 Gray (Mass.) 523. (>J. MoMahon v. McGrady, 5 Serg. & R. (Pa.) 314. 68. Citizens Bank v. Nantucket Steamboat Co., 2 Story 16. 69. Hannan v. Greenfield, 36 Oreg. 97, 58 Pac. R. 888. 70. Doe V. Durnford, 2 Mauk & S. 62. 71. Hess V. Griggs, 43 Mich. 397, 5 N. W. R. ,427. 72. Cronk v. Frith, 9 Car. & P. 197. 73. Porter v. Wdlson, 13 Pa. St. 641 ; Kelsey v. Hammer, 18 Conn. 311. 74. Gillies v. Smithen, 2 Stark. 528. 75. Stemper v. Griffin, 20 Ga. 312, 65 Aim. Dec. 628. 76. Umphreys v. Hendricks, 28 Ga. 157. 330 THE LAW OF EVIDENCE it/''^ or the fact that he offers to testify to his own execution of it, does not dispense with the necessity of calHng the attesting witness.'^ § 38. Qualifications of the rule at common law. — Lord EUinborough says, in speaking of the rule, it is " as fixed, formal and universal as any that can be stated in a court of justice. "'^^ It has, however, several important qualifica- tions. If the subscribing witness is dead,*" or insane,^^ or without the jurisdiction of the court,®^ or cannot be iound,^^ or is incompetent to testify,^* the rule does not apply. Moreover, where the document is lost, and the name of the 77. Zerby v. Wilson, 3 Ohio 42, 17 Am. Dec. S77; Shaver v. Ehle, 16 Johns. (N.Y.) 201; Kinney v. Flynn, 2 R. I. 319; Elli|S V. Doe, 10 Ga. 253. 78. R. V. Harringworth, 4 Maule & S. 350; Petree v. Wilson, 104 Ala. 157, 16 So. 143; Fletcher v. Perry, 91 Ga. 368, 23 S. E. R. 824. 79.- R. V. Harringworith, supra. 80. Armstrong v. Den, 15 N. J. L. 186; Howard v. Snelling, 32 Ga. 195 ; McGowan v. Laughlan, 12 La. Ann. 242. 81. Neely v. Neely, 17 Pa. St. "227; Bennett v. Taylor, 9 Ves. 381. See also, note, 35 L. R. A. 336. 82. Smith v. Keyser, 115 Ala. 455, 22 So. 149, Troedo-r v. Hyatns, 153 Mass. 536; Valentine v. Piper, 22 Pick. (Mass.) 85, 33 Am. Dec. 715 and note; McMinn v. Whelan, 27 Cal. 300; Clardy v. Richardson, 24 Mo. 295. See also note, 35 L. R. A. 325. 83. Gallagher v. London Ass. Corp., 149 Pa. St. 25; Spring v. Ins. Co., 8 Wheat. (U.S.) 269; Falmouth v. Roberts, 9 M. & W. 469. 84. Robertson v. Allen, 16 Ala. 106; Packard v. Dunsmore, 11 Cush. (Mass.) 283; Keefer v. Zimmerman, 22 Md. 274. MODE OF PROVING DOCUMENTS 33 1 subscribing witness is not known, the rule is not applicable.*^ It has been held that where it is agreed that the adverse party may introduce the document in evidence without calling the attesting witness it may be done.*® On th? other hand, it has been held that where this is done it does not give the party the right to do so at a subsequent trial. *'^ Where signatures are added to a prom- issory note or bill of exchange subsequent to at- testation it is not necessafy to call the subscrib- ing witness to prove the genuineness of the sig- natures.** And although, as previously stated, the general rule is applicable to forged, as well as genuine, documents, it has been held, in a trial for larceny, that where a bill of sale is in- troduced as a forgery to support the credit of a witness the subscribing witness need not be called.*® It also has been held that it is not nec- essary to call either of the subscribing witnesses to a deed where the fact sought to be proved is an erasure in the deed.®" In New York the rule has been held to apply to documents under seal,®^ but not to negotiable instruments.®^ Also 85. Porter v. Wilson, supra; Kelsey v. Hammer, supra. 86. Jones v. Henry, 84 N. C. 320, 37 Am. Rep. 624; Blake v. Sawin, 10 Allen (Mass.) 340. 87. Baldridge v. Walton, 1 Mo. 520. 88. Harding v. Cragie, 8 Vt. 501. 89. State v. Wier, 12 N. C. 363. 90. Penny v. Corwithe, 18 Johns. (N.Y.) 499. 91. Fox V. Reil, 3 Johns. (N.Y.) 477. See also, Shaver v. Ehle, 16 Johns. (N.Y.) 201. , 332 THE LAW OF EVIDENCE that a document not under seal may be proved by the admission of the maker without calHng the subscribing witness.®^ Where the admission is made in the pleadings, some courts hold that the subscribing witness need not be called,'* and some hold the contrary.'-*^ Where the admission is made by counsel in open court it has been held that calling the subscribing witness is not necessary.'® § 39. Statutory restrictions of the rule. — In this country and in England statutory enact- ments restrict the common-law rule very mater- ially. These statutes obtain in Massachusetts, New York, Michigan, Illinois, Pennsylvania, Alabama, Rhode Island and other states. The Massachusetts statute provides that " It shall be competent to prove the signature to any attested instrument or writing, except a will, in the same manner as if such instrument were not attest- gjj "97 -pjjg English statute, which was passed in 1854, provides substantially the same thing.'^ It restricts the rule to documents required by 92. Hall V. Phelps, 2 Johns. 451. See also, Pentz v. Winter- bottom, S Den. (N.Y.) SI. 93. Gilberton V. Ginochio, 1 Hilt (N.Y.) 218. 94. Smith V. Gale, 4 Dak. 182, 29 N. W. R. 661, 144 U. S. 509, 12 S. Ct. 674, 36 L. ed. 521. '95. Roberts v. Tennell, 3 T. B. Mon. (Ky.) 247 (admission in an answer in chancery) ; Call v. Dunning, 4 East 53. (admission in an answer to a bill for discovery). 96. Grady" v. Sharron, 6 Yerg. (Tenn.) 320. 97. Statutes of 1897, chap. 387. 98. 17 and 18 Vict., chap. 125. MODE OF PROVING DOCUMENTS 333 law to be attested. It is worded as follows : "It shall not be necessary to prove by the attestirlg witness any instrument to the validity of which attestation is not requisite; and such instrument may be proved by admission, or otherwise, as if there had been no attesting witness thereto." § 40. Number of subscribing witnesses neces- sary. — Although the document may require two or more subscribing witnesses the production of one of them at the trial is ordinarily sufificient.*® It has been held, however, that it is esential that the witness be able to prove all the facts neces- sary to the legal execution of the instrument. The mere fact that he is able to prove only his own signature and that of the other subscribing witnesses is not sufficient. •^°'' Moreover, it has been held that the trial judge may, in his dis- cretion, require that all the subscribing witness- es be produced, provided they be living and be within the jurisdiction of the court. ^ § 41. Requisite conditions pertaining to the act of signing. — A person is not a subscribing wit- ness to the execution of a document where his name is subscribed to it without his knowledge or consent." Nor is he a subscribing witn'ess, in the technical sense, where he affixes his signa- 99. Alkn V. Hoxey, 37 Tex. 320; White v. Wood, 8 Cush. (Mass.) 413. 100. Martin v. Bowie, 37 S. C. 102, IS S. E. R. 736; Jackson V. Le Grange, 19 Jchns. (N.Y.) 386, 10 Am. Dec. 237. 1. Burke v. Miller, 7 Cush. (Mass.) S47. 2. Handy v. State, 7 Harr. & J. (Md.) 42: 334 THE LAW OF EVIDENCE ture without being requested to do so, or without the consent , of the parties by whom it is execut- ed.' It is not essential, however, that he should see the parties to the document affix their sig- natures. It is sufficient if they acknowledge them and request him to sign as a subscribing witness.* i § 42. Sufficiency of the testimony.. — It is not essential that the subscribing witness remem- bers the act of execution by the parties to the document. If he testifies to the genuineness of of his own signature, and that it would not be on the document had he not been requested to sign it as a witness, and furthermore, had it not been executed in his presence or acknowledged to him, it is sufficient.^ § 43. Sufficiency of absence of the subscribing witness. — Ordinarily, if the party is unable to produce the subscribing witness the execution of the document may be proved without his tes- timony.^ But mere absence in a distant part of the state is not sufficient.'' Nor is mere tempo- 3. Sch«maker v. Dean» 201 Pa. St. 439, SO Atl. R. 923 ; Sher- wood V. Pratt, 63 Barb. (N.Y.) 137. 4. Pequawkett Bridge v. Mathes, 7 N. H. 230, 26 Am. Dec. 737; Hale v. Stone,, 14 Ala. 803. 5. Robinson v. Brennan, US Mass. 582; Hale v. Stone, supra; Wheeler v. Hatch, 12 Me. 389. 6. Clarke v. Courtney, S Peters (U.S.) 343. See also, note 3S L. R. A. 326 et seq. 7. Jackson v. Root, 18 Johns. (N.Y.) 60; Tarns v. Hitner, 9 Pa. St. 441. V MODE OF PROVING DOCUMENTS 335 rary absence from the state sufficient.* An earn- est effort must be made in due season to produce him.® Inquiry should be made in good faith at his place of residence, and of persons who would be likely to know of his whereabouts.-''' And if, after a reasonable attempt to locate him, he can- not be found, the execution of the document may be proved without his testimony.^^ Where it appears that the witness is seeking to avoid being present at the trial; courts do not demand as great diligence in attempting to produce him.^^ And where the proof shows collusion be- tween the adverse party and the witness the courts refuse to apply the rule.^^ Likewise where the adverse party wrongfully withholds the document.^* Where the document is executed outside the state it is not necessary,' ordinarily, to produce the subscribing witness. ^^ In such case a presumption exists that he is a non-resi- dent. And where the subscribing witness is without the state it is not necessary to attempt to get his deposition.^® 8. Mills V. Twist, 8 Johns: (N.Y.) 121. 9. Mills V. Twist, supra. 10. Jackson v. Waldron, 13 Wend. (N.Y.) 199. 11. Jackson v. Chamberlain, 8 Wend. (N.Y.) 199; Clark v. Sanderson, 3 Binn. (Pa.) 192, 5 Am. Dec. 368. 12. Mills V. Twist, supra. 13. Mills V. Twist, supra. 14. Davis V. Spooner, 3 Pick. (Mass.) 284. 15. Valentine v. Piper, 22 Pick. (Mass.) 8S, 33 Am. Dec. 715 and note; McMinn v. O'Connor, 27 Cal. 238. 16. Clark v. Houghton, 12 Gray (Mass.) 38. 336 THE LAW OF EVIDENCE § 44. Adverse party claims interest under the document. — It is sometimes said that where the document is in the possession of the adverse party, and is produced by him pursuant to no- tice, the rule requiring that the subscribing wit- ness be called does not apply. It is to be ob- served, however, that the adverse party must also claim a beneficial interest under the docu- ment. -^^ If the adverse party, on cross-examina- tion, admits that he has in his possesion a docu- ment vinder which he claims a beneficial interest, and the document is material to the issue, the court may order him to produce it, in which case it may be introduced in evidence without calling the subscribing witness. -^^ § 45. Document collaterally in issue. — Where the document comes into the case collaterally and is not directly in issue it is not essential to call the subscribng witness. It may be proved in such case by any competent testimony.-^® §^46. Rule not applicable to ancient docu- ments. — The rule under discussion is not ap- plicable to documents which are at least thirty years old, which are free from suspicion and 17. Doe V. Cleveland, 9 Barn. & C. 864. 18. McGregor v. Wait, 10 Gray (Mass.) 72, 69 Am. Dec. 305. See also note, 35 L. R. A. 346 et al. 19. National Computing Scale Co. v. Eaves, 116 Ga. 511, 42 S. E. R. 783; Leavering v. Smith, 115 N. C. 385, 20 S. E. R. 446; Steiner v. Tranum, 98 Ala. 315, 13 So. R. 365; Kitchen v. Smith, 101 Pa. St. 452. See also, Skinner v. Brigham, 126 Mass. 132. MODE OF PROVING DOCUMENTS 337 which are produced from- the proper custody. In this country, however, it is also essentia!, accord- ing to the weight of authority, that there be some corroborating evidence of the genuineness of the document, in addition to the fact that it is produced from the proper custody.*" Accord- ing to the Enghsh decisions, however, this fea- ture is not necessary.*'- § 47. Rule not applicable when the attested document is acknowledged under a statute. — " Whenever a statute authorizes the aci, 69 Am. St. Rep. 252. 65. St. Lawrence Mut. Ins. Co. v. Paige, 1 Hilt. (N. Y.) 430 MODE OF PROVING DOCUMENTS 347 meetings when properly identified, have been held admissible.®" § 52. Records of municipal corporations. — The existence of a municipal corporation is evi- denced by its charter. Its acts, etc.y ai^e shown- by its original records or by properly authenti- cated copies thereof.®^ Thus,, its ordinances are proved by the book containing them, properly verified, or by duly certified copies."^ The rec- ords of municipal corporations are admissible in evidence on similar grounds to those upon which other records are held admissible.®" They are admissible not only as admissions against the corporation,'^'* but also in behalf of the corpora- tion.''^^ Unless a statute requires it, it is not essen- ■ tial that the minutes of a council meeting be recorded in a book to be admissible. If the min- utes are approved by the council it is sufficient.''^ If a statute prescribes that certain formalities accompany the passage of an ordinance, it is essential to show that the requirements of the statute were complied with ;'^ but in the absence 66. Vawter v. Franklin College, S3 Ind. 88. 67. Lindsay v. City of Chicago, 115 111. 120. 68. People v. Murray, 57 Mich. 396; Campbell v. St. Louis, etc., Ry. Co., 175 Mo. 161. 69. Parrel' V. City of Dtibuque, 129 la. 447, 105 N. W. R. 696; Chicago V. Greer, 9 Wall. (U. S.) 726. 70. Sharon v. Salisbury, 29 Conn. 113. 71. Troy V. Railroad Co., 11 Kan. 519,' 13 Kan. 70; School District V. Blakeslee, 13 Conn. 227. 72. O'Malley v. McGinn, S3 Wis. 353, 10 N. W. R. 515. 73. Larkin v. Burlington, etc., Ry. Co.', 85 la. 492, 52 N. W. R. 480. 348 THE LAW OF EVIDENCE of such a statute it is not essential to do so. In the latter case there is a presumption that the requirements prescribed in the charter were ob- served.^* § 53. Reports of commercial agencies.^ — Com- mercial agencies furnish to their patrons reports of the financial standing of business men. These reports, which are called " ratings," are not ad- missible in evidence against parties who take no part in making or publishing them.^^ § 54. Church records, etc. — Church records of marriages, deaths, baptisms, etc., are usually- held admissible as entries made in the regular course of business.^® A record of baptism, how- ever, which incidentally contains the date of birth of the child, is not admissible to show the latter fact.'^'^ § 55. Tax records. Post-office records. School records. — These various classes of records, when duly authenticated, are admissible in evidence. Thus, books kept by county treasurers, assessors and collectors, while acting in their official ca- pacities, are admissible to show prima facie their contents.''^ And records kept by the warden of a 74. State v. King, 37 la. 469; O'Mally v. McGinn, supra. 75. Ba;ker v. Ashe, 80 Tex. 356, 16 S. W. R. 36; Richardson V. Stringfellow.lOO Ala. 416, 14 So. R. 283. 76. Durfee v. Abbott, 61 Mich. 471, 28 N. W. R. 521 ; Weaver V. Lennan, 52 Md. 708; Blackburn v. Crawfords, 3 Wall. (U. S.) 175. 77. Kennedy v. Doyle, 10 Allen (Mass.) 161. 78. Anthony v. Mercantile, :etc., Assoc:, 162. Mass. 60; Gage V. Davis, 122 111. 520. MODE OF PROVING DOCUMENTS 349 penetentiary ;''^ a jailor; or school commission- er;^" when duly authenticated, are admissible in evidence. , Also those kept by a postmaster, pur- suant to authority, vested in him by the post office department.^-' § 56. Records of secret societies.^Unless re- quired by law to be kept, records of secret soci- eties are usually inadmissible. ^^ In some cases, however, they fall within an exception to the rule against hearsay. They have been held ad- missible to prove an act on the part of the so- ciety as a whole, even when unincorporated.*^ And also to prove the^age of a member.** § 57. Entries contained in log-books. — An act of congress provides that masters of vessels shall have log-books and record in them certain class- es of entries, and in so far as the entries are within the scOipe contemplated by congress they are admissible in evidence.*" Beyond this, they are not admissible to prove facts favorable to the master or owners of the vessel.** They may, 79. Sandy White v. United States, 164 U. S. 100. 80. Moriaghan v. School Dist., 38' Wis. 101. 81. Merriam v. Mitchell, 13 Me. 439. 82. Conoeeticut Mut. L. Ins. Co. v. Sohwenk,-94 U. S. 593, 24 L. ed. 294. 83. Howard v. Russell, 75 Tex. 171, 12 S. W. R. S25. 84. Connecticut Mut. L. Ins. Co. v. Sohwenk, supra. 85. Cameron v. Rich, 5 Rich. (S.C.) 352, 52 Am. Dec. 747; United States v. Sharp,, 27 Fed. Cas. No., 16,264, Pet. C. C. 118. 86. United States v. Gibert, 25 Fed. Cas. No.- 15,204, 2 Suran. 19. 350 THE LAW OF EVIDENCE however, be admissible as admissions. ^^ It has been held that an entry in the log-book showing desertion is admissible to support a contention of forfeiture of wages. ^^ The log-book, in gen- eral ought not to be admitted to establish any facts, save such as are contemplated by the act of congress. It is in no sense, per se evidence except in certain cases provided for by statute. It does not import legal verity; and in every other case is mere hearsay, not under oath. It may be used against persons, to whom it should be brought home as having a concern in writing or directing what should be contained therein, to contradict -their statements or their defense. But it cannot be received as evidence for such persons or others, except by force of a statute rendering it so.*® § 58. Relevancy of letters and telegrams. — As a general rule, a letter or telegram is not admis- sible on behalf of the sender.^" It is admissible, however, in so far as it constitutes admissions. ^^ Moreover, when the correspondence between the parties constitutes a contract it is admissible 87. United States v. Gibert, supra. 88. Jones v. The Phoenix, 13 Fed Cas. No. 7,489, 1 Pet. Adm. 201. 89. United States v. Gibert, supra. 90. Snow V. Warner, 10 Mete. (Mass.) 132, 43 Am. Dec. 417; Dewees v. Bluntzer, 70 Tex. 406, 7 S. W. R. 820 ; Honde v. Tolman, 42 Minn. 522, 44 N. W. R. 879. 91. Dick V. Zimmermati, 207 111. 636, 69 N. E. R. 7S4; White V. McNuIty, 164 N. Y. 582, 58 N. E. R. 1094; Griffin, etc., Co. V. Joannes, 80 Wis. 601, 50 N. W. R. 785. MODE OF PROVING DOCUMENTS 35 1 to prove the contract.*^ And a letter is admissi- ble in evidence where the purpose of introducing it is to show the intention of the writer, assuming that such intention is material to the issue.** But a letter by an agent to his principal containing self-serving assertions is not admissible against a third party.** The general principles of evi- dence pertaining to relevancy are applicable to letters and telegrams.*^ Where a letter calls for an answer, and the addressee fails to answer,** or replies only in part,*'' it may be admissible against him. But where the addressee is under no obligation to reply, the letter addressed to him is not admissible as an admission against him.*^ Where a party has introduced in evidence letters addressed to him, he may introduce let- ters previously sent by him to which the former letters were replies, where his purpose in doing so is to explain the contents of the letters re- ceived by him.** A letter or telegram is admis- sible to show that notice was duly given, or that 92. Sanborn v. Nockin, 20 Minn. 178; Shaw v. Davis, 7 Mich. 318; Thames L. & T. Co. v. Beville, 100 Ind. 309. 93. New York Mut. L. Ins. Co. v. Hillmon, 145 U. S. 285, 12 S. Ct. 909, 36 L. ed. 706. 94. Ins. Op. V. Guardiola, 129 U. S. 642. 95. Percy v. Bibber, 134 Mass. 404; Mobile, etc., Ry. Co. v. Jay, 65 Ala. 113. 96. Whitaker v. White, (>9 Hun (N. Y.) 258. 91. Beach v. Travelers' Ins. Co., 73 Conn. 118, 46 Atl. R. 867. 98. Thomas v. Gage, 141 N. Y. 506, 36 N. E. R. 385. 99. Buffum V. York Mamif. Co., 175 Mass. 471, 56 N.E.R. 599. 352 THE LAW OF EVIDENCE a demand was duly made.^"" Where a letter is introduced in evidence the party introducing it may read only part of it.-"- In an action on a life insurance policy, letters by the company^ denying its liability may be admissible.^ Letters containing threats have been frequently held admissible. Thus, where the defendant in a criminal case admitted to a brother of the de- ceased that he wrote a letter to the former, in which he threatened to kill both the deceased and his brother, the letter was held admissible to show the threat.^ 100. Struthers V. Drexel, 122 U. S. 487; Merrill v. Downs, 41 N. H. 72 ; Swan v. West, 41 Miss. 104. 1. Lester v. Piedmont, etc., L. Ins. Co.j 55 Ga. 475 ; Raphael V. Hartman, 87 111. App. 634. , 2. Prudential Ins. Co. v. Deyoe, 98 Md. 584, ,56 Atl. R. 809. 3. Westbrook v. People, 126 111.' 81, 18' N. E. R. 304^ CHAPTER II. Alteration of Documents. § I. In general. — Alteration of a document is an act done upon it which changes, either mater- ially or immaterially, its languaige or meaning.^ A material' alteration is one which changes the legal effect of the document. It " causes it to speak a language dififerent in legal effect from 1. Moore v. Macon Sav.Bank, 22 Mo. App. 684; Morrill v. V, Otis, 12 : N. H. 466. . ' ALTERATION OF DOCUMENTS 353 that which it originally spake. "^ An immaterial alteration is one which does not change the legal effect of the document. One " where neither the rights nor interests, duties nor obligations, of either of the parties are in any manner affected or changed."^ An alteration may consist of an addition, an interlineation, or an erasure. When it is made without the consent or connivance of a party to the document it is called a " spolia- tion." Technically speaking, a spoliation is not regarded as an alteration in the legal sense.* § 2. Effect of alterations.^ — The effect of an alteration in a document depends upon the cir- cumstances of the particular case. According to the early English rule even spoliation, if in a material part, avoided the instrument. It was so held in Henry Pigot's case.^ Moreover, it was held in that case that " if the obligee himself al- ters the deed by any of said ways (interlinea- tion, addition, erasing or drawing a pen thru a word), altho it is in words not material, yet the deed is void." And this rule was applied to contracts as well as to sealed instruments.^ Lord 2. Murray v. Klinzing, 64 Conn. 78. See also, Morrill v. Otis, supra; Wheelock v. Freeman, 13 Pick. (Mass.) 168, 23 Am. Dec. 674. 3. Smith V. Crooloer, 5 Mass. 538. 4. Bridges v. Winters, 42 Miss. 13S, 2 Am. Rep. 598, 97 Am. Dec. 443. 5. 11 Coke Rep. 27. See also, 86 Am. Rep. 102 et seq. 6. Davidson v. Cooper, 11 M. & W. 778, 13 M. & M. 343; Powell V. Divett, 15 East 29. See also note, 86 Am. St. Rep. 102 et seq. 354 THE LAW OF EVIDENCE Coke held that even a spoliation made before the execution of the document invalidated the in- strument.''^ This early rule, however, has been severely criticised. Moreover, it has been wholly repudiated in this country, and in England much relaxed. Story, J., in speaking of it says, " a doctrine so repugnant to common sense and jus- tice, which inflicts on an innocent party all the losses occasioned by mistake, by accident, by the wrongful acts of third persons, or by the provi- dence of Heaven, ought to have the unequivocal support of- unbroken authority before a court of law is bound to surrender its judgment to what deserves no better name than a. technical quib- ble."^ According to the modem rule an altera- tion made by a stranger, altho made in a mater- ial part, does not effect the validity of the in- strument.® As regards the effect of immaterial alterations the decisions are somewhat conflicting. Some of the older decisions hold that even an imma- terial alteration, by a party to the instrument, 7. Goke jipon Littleton, 225 b. 8. United States v. Spalding, 2 Mason (U. S.) 478. See also to same effect, Atnes v. Brown, 22 Minn. 257; Bel- lows V. Weeks, 41 Vt. 590; Aldous v. Cornwall, L. R. 3 Q. B. 573, For general discussions of the subject see notes, \l Am. Rep. 97-106; 25 Am. Rep. 481-484; 86 Am. St. Rep. 80-134> 9. Fisher v. King, 153 Pa. St. 3; Fuller v. Green, 64 Wis. 159; Gleason v. Hamilton, 138 N. Y. 353, and cases cited. ALTERATION OF DOCUMENTS 355 made with fraudulent intent, invalidates it.'-" Upon this point Lord Kenyon said, " No man shall be permitted to take the chance of committing a fraud without running any risk of losing by the event when it is detected. "^^ The trend of recent decisions, however, is to the contrary. If the act itself does not affect materially the' legal signifi- cance of the instrument the motive for it does not affect the rights of the parties. •'•^ If the act itself is wholly immaterial the intent with which it is done is also immaterial. This is undoubted- ly the better view. §3. Material alterations. — A material altera- tion in a document is one which causes it to speak a language different in legal effect from that which it originally spoke. ^^ Mr. Daniel says " that any change in the terms of a written con- tract which varies its original legal effect and operation, whether in respect to the obligation it imports, or to its force as a matter of evidence, when made by any party to the contract, is an alteration thereof, unless all the parties to the contract gave their express or implied consent to such change. And the eifect of such alteration 10. Hunt V. Gray, 35 N. J., 10 Am. Rep. 232; First Nat. Bank v. Frickle, 75 Mo. 178, 42 Am. Rep. 397. 11. See Hunt v. Gray, supra. 12. Robinson v. P'hoenix Ins. Co., 25 la. 430; Fuller v. Green, 64 Wis. 159, 24 N. W. R. 907, 54 Am. Rep. 600; Miller v. Gilleland, 19 Pa. St. 119. 13. White S. M. Co. v. Saxon, 121 Ala. 399, 25 So. R. 784; Phoenix Ins. Co. v. 'McKernan, 100 Ky. 97, 37 S. W. R. 490. 356 THE LAW OF EVIDENCE is to nullify and destroy the altered instrument as a legal obligation, whether made with fraud- ulent intent or not."^* And Mr. Stephen says, "An alteration is said to be material when, if it had been made with the consent of the party charged, it would have affected his interest or varied his obligations in any way whatever."^^ The following alterations have been held mater- ial : erasing or adding signatures i"-* erasing or in- serting the place of payment;^" changing the date of the document ;^^ changing the considera- tion ;^^ inserting the words " waive notice and protest " over an indorsement f^ adding the word " junior " to a signature, or erasing it 14. Daniel, Neg. Instr. (Sth ed.), § 1373. See also to same effect, Greenfield Bank v. Stowell, 123 Mass. 196, 25 Am. Rep. 67; Adair v. England, 58 la. 314; Mers-man v. Werges, 112 U. S. 139. For full note on' the subject see 86 Am. St. Rep. 80-134. 15. Steph. Evid., art. 89. See also, Phoenix Ins. Co. v. McKetnan, 100 Ky. 97, 37 S. W. R. 490; White S. M. Co. V. Saxon, 121 Ala. 399, 25 So. R. 784. 16. Houck V. Graham, 106 Ind. 195, 55 Am. Rep. 727 ; Sulli- van V. Rudisill, 63 la. 158; Monson v. Drakeley, 40 Conn. 552, 16 Am. Rep. 74; Mason v. Bradley, 11 M. & W. 590. See also note, 86 Am. St. Rep. 91 et seq. 17. Baugh V. Anderson, 91 Ga. 831 ; Winter v. Pool, 100 Ala. 503. See also 10 Am. Dec. 239 and note. 18. McCormick Harv. Mach, Co. v. Lauber, 7 Kan. App. 730, 52 Pac. R. 577; Taylor v. Taylor, 12 Lea (Tenn.) 714. See also notes 71 Am. Dec. 724; 86 Am. St. Rep. 99. 19. Waterman v. Vose, 43 Me. 504; Green v. Snead, 101 Ala. 205. See also note, 86 Am. St. Rep. 96. 20. Davis v. Eppler, 38 Kan. 629. ALTERATION OF DOCUMENTS 357 therefrom f^ changing the rate of interest, or mode of paying it f^ making a non-negotiable note negotiable f^ changing the description of property;^* changing the time of payment;*® adding the name of a witness;*® changing the name of the grantee,*'' or payee ;** changing the name of the maker of a note or the drawer of a bill of exchange ;*" adding " and Co." to the name of the maker ;^*' erasing the term " surety " after an obligor's name f^ adding the term " cashier " to the payee's name f^ substituting " bearer " 21. Brougbton v. Fuller, 9 Vt. 373; contra, Cort v. Stark- weather, 8 Conii. 289. 22. Heath v. Blake, 28 S. C. 406; Gwin v. Anderson, 91 Ga. 831. 23. Needles v. Shaffer, 60 la. 65 ; Brown v. Straw, 6 Neb. 536, 29 Am. Rep. 369. See also note, 86 Am. Rep. 95 et seq. 24. Sherwood v. Merritt, 83 Wis. 233 ; Hollingsworth v. Hol- brook, 80 la. 151. 25. Wyman v. Yeomans, 84 111. 403 ; Steinan v. Moody, 100 Ga. 136, 28 S. E. R. 30; Lisle v. Rogers, 57 Ky. 528. 26. Homer v. Wallis, 11 Mass. 309, 6 Am. Dec. 169. 27. Abbott V. Abbott, 189 III. 488, 82 Am. St. Rep. 470, 59 ,N. E. R. 958. 28. Horn v. Newton City Bank, 32 Kan. 518, 4 Pac. R. 1022; Stoddard v. Penniman, 108 Mass. 366, 11 Am. Rep. 363. 29. Sharpe v. Bellis, 61 Pa. St. 69, 100 Am. Dec. 618 Sheridan V. Carpenter, 61 Me. 93. 30. Montgomery v. Crossthwait, 90 Ala. 553, 24 Am. St. Rep. 832, 8 So. R. 498. 31. Humphreys v. Crane, 5 Cal. 173; Laub v. Paine, 46 la. 550, 26 Am. Rep. 163. 32. Hodge v. Farmers' Bank, 7 Ind. App. 94, 34 N. E, R. 123. 358 THE LAW OF EVIDENCE for "or order," or vice versa;^^ changing the amount;^* changing the place of payment ;^^ adding or erasing the words "in specie," or "pay- able in gold" f^ changing the subject matter by making it less, more or different;" adding or re- moving a seal (in jurisdictions where seals are still used) f^ adding or erasing a provision for attorney's fees ;** inserting a consideration*" (but not where the sole purpose is to show the rea:l consideration paid,*^ or merely to show that a valuable consideration is paid or to be paid*^) ; adding the words " more or less " to the quantity 33. McCauley v. Gordon, 64 Ga. 221, 37 Am. Rep. 68; Cross- well V. Labree, 81 Me. 44, .10 Am. St. Rep. 238, 16 Atl. R. 331. 34. Merritt v. Boyden, 191 III. 136, 85 Am. Si Rep. 246, 60 N. E. R. 907 ; Greera v. Sneed, 101 Ala. 205, 46 Am. St. Rep. 119, 13 So. R. 277, Lee v. Butler, 167 Mass. 426, 57 Am. St. Rep. 466, 46 N. E. R. 52. 35. Pelton V. San Jacinto, etc., Co., 113 Cal. 21, 45 Pac. R. 12; Toomer v. Rutland, .57 Ala. 379, 29 Am. Rep. 722; Wheeler v. Single, 62 Wis. 380, 22 N. W. R. 569. 36. Bogartli v. Breedteve, 39 Tex. 561 ; Darwin v. Rippey, 63 N. C. 318. 37. Willard v. Ostrander, 51 Kan. 481, 37 Am. St. Rep. 294, 32 Pac. R. ,1092; Richardson v. Fellner, 9 Okla. 513, 60 Pac. R. 270; Osborne v. Van Houten, 45 Mich. 444, 8 N. W. R. 77. 38. Evans v. Williams, 79 N. C. 86; Rawson v. Davidson, 49 Mich. 607, 14 N. W. R. 565. 39. Coles V; Yorks, 28 Minn. 464, 10 N. W. R. 775; First Nat. Bank v. Laughlin, 4 N. Dak. 391, 61 N.- W. R. 473. 40. Low v. Argrove, 30 Ga. 129. 41. Murray v. Klinzing, 64 Conn. 78, 29 Atl. R. 244. 42. Reed v. Kemp, 16 111. 445. ALTERATION OF DOCUMENTS 359 of land contracted to be conveyed;** increasing the amount of attorney's fees specified;** chang- ing a joint and several promise into a joint prom- ise*^ (but not where a joint promise is changed into a joint and several promise**) ; adding " f. b. b. cars at mine " to a contract for purchase and sale of coal.*^ § 4. Immaterial alterations. — An immaterial alteration is one which does not affect the rights, interests, duties or obligations of either of the parties to the document.*^ The followiiig altera- tions have been held immaterial : erasing the middle initial of a person's name;** adding the words " together with lo per cent, attorney's fees" to a penal bond;^" noting on a bill of ex- change the residences of the drawer and indors- ers;^^ adding or erasing terms which may be supplied by construction;^^ altering the serial 43. Sherwood v. Merritt, 83 Wis. 233, S3 N. W. R. 512. 44. Burwell v. Orr, 84 111. 46S. 45. Humphreys v. Guillow, 13 N. H. 385 ; Ecbert v. Louis, 84 Ind. 99. Contra, Eddy v. Bond, 19 Me. 461 46. Kline v. Raymond, 70. Mo. 271; Landaner v. Sioux Falls Imp. Co., 10 S. Dak. 20S, 72 N.. W. R. 467; Miller v. Reed, 27 Pa. St. 244, 67 Am. Rep. 459. 47. Brady v. Berwind-White Coal M. Co., 94 Fed. R. 28. 48. Smith v. Crooker, 5 Mass. 538; Arnold v. Jones, 2 R. I. 345. 49. Banks v. Lee, 73 Ga. 25. 50. White Sewing Machine Co. v. Dakin, 86 Mich. 581, 49 N. W. R. 583, 13 L. R. A. 313. 51. Struthers v. Kendall, 41 Pa. St. 2H, 80 Am. Dec. 610. 52. Sanitary Dist v. Allen, 178 111. 330, S3 N. E. R. 109; Hunt V. Adams, 6 Mass. 519 ("It would be unworthy the 1360 THE LAW OF EVIDENCE numbers on bonds, coupons, etc. ;^* inserting on back of a note the interest due and also total amount due f^ inserting- in a note the rate of interest agreed upon;^^ inserting the name of a subscribing witness agreed upon;^^ putting the sign "$" before figures meant to represent dollars f' changing the marginal figures to make them harmonize with the written words in the body of the document;^* changing the wording of the document without afifecting the sense or legal efifect of the instru- ment;^® inserting an irnmaterial date;®'' erasing his name, by an indorser, from the face of a note and inserting it on the' back ;®^ inserting the word "at"®^ before the bank named as the place of pay- ment f^ inserting a memorandum at the foot of a note designating a particular place at which it wisdom of the law to decide that an incautious interlinea- tion of a word, which the same law would necessarily imply, should defeat the contract") ; .Briscoe v. Reynolds, 51 la. 673, 2 N.W.R..S29; Burnham v. Ayer, 35 N, H. 351. 53. Com. V. Emigrant Sav. Bank, 98 Mass. 12, 93 , Am. Dec. 126; State v. Cobb, 64 Ala. 127, 157; Noteholders v. Funding Board, 84 Tenn. 46, 57 Am. Rep. 211. 54. Watertown Steam Engine Co. v. Tex. Civ. App. , 24 S. W. R. 657. 55. First Nat. Bank v. Carson, 60 Mich. 432. 56. Fuller v. Green, 64 Wis. 159. 57. Houghton v. Francis, 29 III. 244. 58. Smith v. Smith, 1 R. I. 398, 53 Am. Dec. 652. 59. Cushirig v. Field, 70 Me. 50, 35 Am. Rep. 293. 60. Inglish v. Breneman, 5 Ark. 377, 41 Am. Dec. 96. 61. Reilly v. First Nat. Bank, 148 IM. 349, 35 N. E. R. 1120. 62. Simmins v. Atkinson, 69 Miss. 862, 12 So. R. 263, 23 L. R. A. 59. ALTERATION OE DOCUMENTS 361 is payable;®^ inserting the word "months" in the clause " twenty-four after date" f'^ inserting in a note a provision for the payment of current ex- change, or express charges for transmitting the money to the place, of payment;®^ adding words which particularize a general description;®^ add- ing words which merely cure an imperfect des- cription;®'' inserting or striking out a considera- tion where the consideration is immaterial f^ insert- ing the real consideration paid f^ tearing from a note a memorandum stating that certain persons had signed the note as sureties ;''" inserting in a note, given to a physician for professional services, the words "for labor" -^^ erasing the name of the acting sheriff from a bond and inserting the name of the ob- 63. Amer. Nat. Bank v. Bangs, 42 Mo. 450, 97 Am. Dec. 349 ; Williams v. Waring, 10 Barn. & C. 2, 21 Eng. C. L. 11. 64. Conner v. Routh, 7 How. (Miss.) 176, 40 Am. Dec. 59. 65. Bullock V. Taylor, 39 Mich. 137, 33 Am. 'Rep. 356 (surety's liability unaflfected). 66. Churchill v. Beilstein, 9 Tex. Civ. App. 445, 29 S.W.R. 392. 67. Sharpe v. Orme, 61 Ala. 263 ; Hatch, v. Hatch, 9 Mass. 307, 6 Am. Dec. 67 ; Brown v. Pinkham, 18 Pick. (Mass.) 172. 68. Westmoreland v. Westmoreland, 91 Ga. 233, 17 S. E. R. 1033. 69. Murray v. Klinzing, 64 Conn. 78, 29 Atl. Rep. 244. 70. Humphreys v. Crane, 5 Cal. 173 ("The defendants were liable to the plaintiff, whether they signed as principals or sureties, and it is well settled that an alteration which does not vary the meaning, the nature or the subject matter of a contract, is immaterial). 71. Magers v. Dunlap, 39 111. App. 618. 362 THE LAW OF EVIDENCE ligee who was to be protected by its execution;''^ adding the christian names of the drawers to a bill of exchange ;''* correcting the name of a party to the document ;''* adding a mere descrip- tion of a person.^^ It has been held that adding a clause which makes a note payable at a certain bank is an immaterial alteration.''® This view, however, is erroneous, and the contrary is sup- ported by the great weight of authority.'''^ Changing " I promise " to " We promise " has been held immaterial.''^ § 5. Effect of alteration of memoranda. — The effect of making a material alteration in a mem- orandum depends upon whether the parties in- 72. Turner v. Billagrain, 2 Cal. 520. See also Hale v. Russ, 1 Me. 334. 73. Blair v. Baiik of term., 11 Humph. (Xenn.) 84 ("The omission of the christian names of the drawers was one which the law supplied, and which did dot affect their liability to the acceptor or other parties.") 74. Outtown V. Dulin, 72 Md. 536, 20 Atl. R. 134; First Nat. Bank v. Wolff, 79 Cal. 69, 21 Pac, R. 551 ; State v. Dean, 40 Mo. 464: -. . 75. Casto V. Evinger, 17 Ind. App.-298, 46 N. E. R. 648; Coit V. Starkweather, 8 Coim. 289 (adding "Junior" to a man's name). ^ 76. Etz V. Place, 81 Hun (N. Y.) 203, 30 N. Y. Supp. 765; Major V. Hansen^, 2 Biss. 195, Fed. Cas. No. 8982. 77. Pehon V. San Jacinto, etc., Co., 113 Cal. 21, 45 Pac. R. 12; Toomer v. Rutland, 57 Ala. 379, 29 Am. Rep. 722; Wheeler v. Single, 62 Wis. 380, 22 N. W. R. 569 ; Charl- ton V. Reed, 61 la. 166, 47 Am. Rep. 808, 16 N. W; R. 64; Gillaspie v. Kelley, 41 Ihd. 158, 13 Am. Rep. 318,. 78. Eddy v. Bond, 19 Me. 461, 36 Am. Dec: 767. Contra, Humphreys v. Guillow, 13 N. H. 385, 38 Am. Dec. 767. ALTERATION OF DOCUMENTS 363 tended it to constitute a part of the document or not. If they did, the alteration avoids the con- tract; otherwise not.'^^ The diiificulty frequently is to determine the intention. Unless there is clear proof to the contrary, a presumption exists that the memorandum was intended to consti- tute a part of the contract.*" Altho an in- dorsement on a note is considered a new and sep- arate contract, an alteration of which does not vitiate the note itself,*^ yet a memorandum on the back of an instrument may constitute a part of it, in which case a rnaterial alteration of the memorandum will avoid the instrument.*^ § 6. Alteration by an executor or administrat- or. — An executor or administrator is pecuniarily interested in a document which forms patt Of the decedent's estate;' and a material alteration of it by the executor or administrator avoids the doc- ument. " The administrator of a decedent is the title holder of the personal assets of the estate for the purpose of administration, and has a pe- cuniary, interest in them for the commission al- lowed by, law. The plaintiff in this case was not a stranger to the note, and the first change made by him was a material alteration, not a spolia- 79. Brown v. Reed, 79 Pa. St. 570, 21 Am. Rep. 75 ; Stephens V. Davis, 85 Tenn. 271, 2 S. W. R. 382; Cornell v. Nebeker, 48 Ind. 463. ' 80. Johnson v. Heagan, 23 Me. 329. 81. Howe V. Thompson, 11 Me. 152. 82. Dinsbore v. Dunoaii, 57 N. Y. 579, IS Am. Rep. 534; Johnston v. May, 76 Ind. 293. 364 THE LAW OF EVIDENCE tion, which avoided the instrument against the maker."^* § 7. Alteration by a special agent. — ^An agent who has mere authority to receive a note for his principal is not presumed to have authority to alter it. It follows, therefore, that an unauthor- ized material alteration of the note by such agent amounts only to a spoliation, and does not avoid the instrument.^* § 8. Alteration by a thief. — A thief is not a " holder " of a document which he has stolen. Hence an alteration of it by him is a mere spolia- tion and does not avoid the instrument.^® § 9. Alteration by a co-obligor. — An alteration by the principal obligor, either before or after negotiation, discharges a surety or an accom- modation indorser.^® An obligor has no implied authority to alter a document after a co-obligor 83. McMurtrey v. Sparks, 71 Mo. App. 126. 84. Perkins Windmill Co. v. TiUmau, SS Neb. 6S2, 7S N. W. R. 1098; Hunt v. Gay, 35 N. J. L. 227, 10 Am. Rep. 232; Langenberger v. Kroeger, 48 Cal. 147, 17 Am. Rep. 418. See also, Hollingsworth v. Holbrook, 80 la. 151, 20 Am. St. Rep. 411, 45 N. W. R. 561. 85. Elizabeth v. Force, 29 N. J. Eq. 587; Dinsmore v. Dun- can, .57 N. Y. 573, IS Am. Rep. 534; Com. v. Emigrant Sav. Bank, 98 Mass. 12, 93 Am. Dec. 126. Contra, Colson V. Arnot, 57 N. Y. 253, 15 Am. Rep. 496. 86. Stoddard v. Penniman, 108 Mass. 366, 11 Am. Rep. 363; Waterman v. Vose, 43 Me. 504;, State v. Churchill, 48 Ark. 426, 3 S. W. R. 352, 380; Bradley v. Mann, 37 Mich. 1. ALTERATION OF DOCUMENTS 365 has signed it.^'^ The relation of the parties does not give rise in such case to an implied agency.*^ And the same principle applies where a surety intrusts the document to the principal obligor to deliver ol" negotiate.*® § ID. Authority from holder. — An alteration by an agent who has received express authority from the holder to make it avoids the instrument. Such cases, however, are comparatively rare. And an alteration by an agent who has received impHed authority from the holder to make it also avoids the document. The difficulty fre- quently experienced in such cases is in determin- ing whether an implied agency existed or not. As fraud is not presumed, there is no presumption in favor of such agency; and the burden of prov- ing it rests upon the party alleging it."" § II. Alteration by a public officer. — As a gen- eral rule, an alteration of a bond or other docu- 87. Greenfield Sav. Bank v. Stowell, 123 Mass. 196, 25 Am. . Rep. 67; Flanigan v. Phelps, 42 Minn. 186, 43 N. W. R. 1113. 88. Neff V. Horner, 63 Pa. St. 327, 3 Am. Rep. SS5 ; Jones v. Bangs, 40 Ohio St. 139, 48 Am. Rep. 664; Stoddard v. Pen- niman, supra. 89. Walsh V. Hunt, 120 Cal. 46, 52 Pac. R. 115; Bfakey v. Johnson, 13 Brush (Ky.) 197, 26 Am. Rep. 254; Hagler V. State, 31 Neb. 144, 28 Am. St. Rep. 514, 47 N. W. R. 692. 90. White Sewing Machine Co. v. Dakin, 86 Mich. 581, 49 N. W. R. 583 ; Hunt v. Gray, supra; Hollingsworth v. Holbrook, supra; Mathias v. Leathers, 99 la. 18, 68 N. W. R. 449. 366 THE LAW OF EVIDENCE ment by a public officer, where it is intrusted to him in his official capacity, avoids the instru- ment. It has been contended that the public offi- cials of a municipality are not its agents when they commit wrongful acts in the performance of a public duty imposed upon them by statute.®^ But the courts hold that this contention is not applicable where a public officer makes material alterations in penal bonds, etc., which have been intrusted to him in his official capacity.*^ " To be relieved from a liability incurred through the unauthorized and unlawful act of a public officer is one thing — to enforce as a valid subsisting claim a bond which has ben vitiated with the consent of those who rightfully had it in keeping on be- half of the town is quite another."®* § 12. Filling in blanks. — The effect of filling in blanks, as regards avoiding the instrument, de- pends upon the circumstances of the particular case. AVhere the maker executes the instrument leaving blanks- to be filled in a certain way by another person, and the latter exceeds his au- thority, the instrument is avoided as between the maker and the person who fills in the 91. Dover v. Robinson, 64 Me. 183. 92. Wegner v. State, 28 Tex. App. 419, 13 S. W. R. 608. 93. Dover v. Robinson, supra. 94. Cogger v. Crabtree, 88 la. 536, 45 Am. St. Rep. 249, 55 N. W. R. 335 ; State v. Mathevi^s, 44 Kan. 596, 25 Pac. R. 36; Greem v. Sneed, 101 Ala. 205, 46 Am. St. Rep. 119, 13 So. R. 277. ALTERATION OF DOCUMENTS 367 blanks."^ It has been held, however, that in such case the maker is still liable on the original debt.«« Where the instrument is negotiable, and has passed into the hands of a bona fide purchaser, who took it without knowledge that the agent who filled in the blanks exceeded his authority, the instrument is valid; and the bona ftde pur- chaser is entitled to recover its face value.®'' " No rule is better settled or founded upon stronger reasons than that which affirms the liabilities of one intrusting his name in blank to another, to the full extent to which such other may see fit to bind him, when the paper is taken in good faith and without notice, actual or implied, that the authority given had been exceeded, or that the confidence repOsed had been abused."^^ As regards the effect of filling in blanks in sealed instruments the decisions are in hopeless 95. Toomer v. Rutland, 57 Ala. 379, 29 Am. Rep. 722 ("When express authority is given to fill the blanks in one respect only, that authority must be pursued and no other can be exercised.") 96. Johnson v. Bksdale, 9 Miss. 17, 40 Am. Dec. 85 ; Fisher V. Dennis, 6 Cal. 577, 65 Am. Dec. 534 (These cases, ho^v- ever, put the right of recovery on a wrong ground. They hold that the instrument is -avoided 'Only as to the excess. In doing so tliey confuse two subjects which are not at all connected.) 97. Woolfolk V. Bank of America, 73 Ky. 504 ; Waldron v. •Young, 56 Tenn. 777; State v. Mathews, supra; Redlich V. Doll, 54 N. Y. 234, 13 Am. Rep. 573 ; Michigan Bank V. Eldrid, 9 Wall. (U. S.) 544. 98. FuUerton v. Sturges, 4 Ohio St. 529. 368 THE LAW OF EVIDENCE conflict. Lord Mansfield held that parol au- thority to fill blanks in sealed instruments was sufficient. Baron Parke, however, repudiated this rule.®® And the modern English rule is in harmony with Baron Parke's view. ■'■'"' In this country some courts have followed Lord Mans- field's rule,^ while others have followed Baron Parke's. 2 § 13. Rights of bona fide holders in other cases.— An unauthorized material alteration of a negotiable instrument by the payee, or an in- dorsee, avoids the instrument as to the maker ; and also even as to a. bona fide indorser for value and without notice, provided his indorsement preceded the alteration.^ On the other hand, a bona ade indorsee may in such case, recover from an indorser who became such after the' alteration.* § 14. When alteration not prejudicial to ob- ligor. — If the alteration is material, the fact that it is not prejudicial to the obligor is unimportant. Even when beneficial to him it avoids the docu- 99. Hibblewhite v. M'Morine, 6 M. & W. 200. 100. Enthoven v. Hoyle, 9 Eng. L. & Eq. 434. 1. Swartz V. Ballou, 47 la. 188; Berwick v. Huntress, S3 Me. 89, 87 Am. Dec. S3S. 2. Burns v. Lynde, 6 Allen (Mass.) 305; Ingram v. Little, 14 Ga.-173, 58 Am. Dec. 549. 3. Capital Bank v. Arms.trong, 62 Mo. 59 ; Bunvell v. Orr, 84 111. 465 ; Greenfield Savings Bank v. Stowell, 123 Mass. 198. 4. Washington Sav. Bank v. Ecky, 51 Mo. 272. ALTERATION OF DOCUMENTS 369 merit.® And especially so when he is a surety.* Moreover, the fact that it operates disadvaritag- eously to the wrongdoer is immaterial. Thus, where the holder of a promissory note makes an alteration in it which diminishes the amount of interest, his act renders the note void.'^ § 15. Effect on negotiable instruments.^The efifect of a material alteration of a negotiable instrument is the same as in the case of any other contract.* It renders the instrument void, even in the hands of a bona Ude indorsee.^ And this rule is applicable to bills of exchange^" and checks^^ as well as to promissory notes. Many 5. Hewinis v. Cargill, 67 Me. 554; Weir Plow Co. v. Walms- ley, 110 Ind. 242; Mon'tgomery v. Crossthwait, 90 Ala. 553. 6. Sturges v. Williams, 9 Ohio St. 443, 75 Am. Dec. 473; Greenfield Bank v. Stowell, 123 Mass. 196, 25 Am. Rep. 67; Miller v. Finley, 26 Mich. 249, 12 Am. Rep. 306; Hartley v. Carboy, ISO Pa. St. 23; Nat. Ulster Bank v. Madden, 114 N. Y. 280, 11 Am. St. Rep. 633. See also notes, 86 Am. St. Rep. et seq. 7. First Nat. Bank v'. Hall, 83 la. 645, 50 N. W. R. 944; Palmer V. Poor, 121 Ind. 135. 8. Vanauken v. Hornbeck, 14 N. J. L. 182; Letcher v. Bates, 6 J. J. Marsh (Ky.) 524, 22 Am. Dec. 92; Gardner v. Walsh, 5 EI. & Bl. 83, 85 E. C. L. 83. 9. Burwell v. Orr, 84 111. 465; Greenfield Sav. Bank v. Stowell, supra; Capital Bank v. Armsitrong, 62 Mo. 59; Gettysburg Nat. Bank v. Ghisolm, 169 Pa. St. 564; Horn V. City Bank, 32 Kan. 518; Knoxvilk Nat. Bank v. Clark, 51 la. 264, 33 Am. Rep. 129. 10. Master v. Miller, 4 T. R. 320, 2 H. Bl. 141." 11. Belknap v. Nat. Bank of North AmeTica, 100 Mass. 376; Redington v. Woods, 45 Cal. 406, 13 Am. Rep. 190; St. Louis Third Nat. Bank v. Allen, 59 Mo. 310. 370 THE LAW OF EVIDENCE cases hold, however, that where the note, bill or check is so negligently drawn that alteration withottt detection is thereby facilitated, the maker is liable on the instrument in its altered condition where it has been transferred to a bona fide purchaser.^^ But some courts hold the contrary.';^ It has been held that where a bill of exchange has been materially altered after ac- ceptance a bona fide indorsee may recover from his indorser the consideration paid him for the bill ; and that this indorser, if not the wrongdoer, may recover from his indorser the consideration paid him for the bill ; and so on until the wrong- doer is reached.-'* As a general rule, however, a bona fide indorsee cannot recover on the instru- ment from the maker, or any indorser prior to the one responsible for the alteration. It is to be observed, however, that the alteration will not relieve a subsequent indorser from liability to his indorsee. ^^ A material alteration of a certi- fied check by the drawer relieves the bank from liability either to the drawer or his assignee.-'® 12. Iron Mountain Bank v. Murdock, 62 Mo. 70; Seibel v. Vaugihan, 69 111. 257; Brown v. R«ed, 79 Pa. St. 370, 21 Am. Rep. 75: 13. Simmons v. Atkinson, etc., Co., 69 Miss. 862; Fordyce V. kosminski, 49 Ark. 40, 4 Am. St. Rep. 18. 14. Burchfiold v. Moore, 3 El. & Bl. 683, 77 E. C. L. 683, 25 Eng. L. & Eq. 123. 15. Washington Sav. Bank v. Ecky, 51 Mo. 272. 16. Abrams v. Union Nat. Bank, 31 La. Ann. 61 ; In re Com- mercial Bank, 10 Manitoba Rep. 171. ALTERATION OF DOCUMENTS 37I i § 16. Same. Effect on accommodation paper. — Where a person puts his name on a bill or note for the accommodation of another, and the latter makes an unauthorized material alteration of it before it ig negotiated, the former party is -re- lieved from liability even as to a bona fide in- dorsee of the instrument. ^'^ Of course, if the payee has knowledge of the alteration the ac- commodation maker is not liable.^* The rule is the same, however, whether he has knowledge or not. Where the alteration in a promissory note is made by the maker, without the knowledge or consent of the accommodation payee, with knovvledge of the transferee and in his presence, the accommodation payee who indorses it to the transferee is relieved from liability.^* Where the payee of the note alters it without the knowledge of the indorser, but with the consent of the maker, the iridorser is not liable on the note.^° The alteration of a judgment note, after judg- ment thereon has been entered, does not invali- 17. Trigig V. Taylor, 27 Mo. 245, 72 Am. Dec. 263 ; Draper v. Wood, 112 Mass. 315, 17 Am. Rep. 92; Ohio Valley Bank V. Lockwood, 13 W. Va. 392; Hert v. Oehkr, 80 Ind. 83; Aetna Nat. Bank v. Winchester, 43 Conn. 391 ; Halcrow v. Kelly, 28 U. C. C. P. 551. 18. Hartley v. Corboy, 150 Pa. St. 23 ; Flanigan v. Phelps, 42 Minn. 186; Thompson v. Massie, 41 Ohio St. 307; Johns- ton V. May, 76 Ind. 298. 19. Sturges v. Williams, 9 Ohio St. 443, 75 Am. Dec. 473. 20. Townsend v. Star Wagon Co., 10 Neb. 615, 35 Am. Rep. 493; Pahlman v. Taylor, ,75 111. 629; Fulmer v. Seitz, 68 Pa. St. 237, 8 Am. Rep. 172. 372 THE LAW OF EVIDENCE date the judgment.^^ Where sureties sign a note for the accommodation of the principal maker, and the latter and one of several joint payees materially alter it, the sureties are relieved from liability.22 § 17. Same. Effect where alteration is made with fraudulent intent. — As a general rule, the effect of making an unauthorized material altera- tion by a party to the instrument, is, as previous- ly stated, to render the instrument void. And ordinarily the intent with which it is made is immaterial. But where the action is brought on the original debt, and not on the instrument, the intent with which the alteration is made may materially affect the rights of the parties. Some courts -hold that where the alteration is made by mistake, and with no fraudulent intent, the ac- tion will lie.^* Other courts hold that even in such case no action will lie unless it appear that the original obligation is separate and distinct from the instrument. In other words, that where the original obligation is merged in the in- strument no action can be based upon it.^* § 18. Important distinction between executory and executed documents. — An important dis- tinction exists between the effect of an unauthor- ized material alteration of a document which evi- 21. Kimoiers Appeal, 91 Pa. St. 471. 22. Thompson v. Massie, 41 Ohio St. 307. 23. Eckert v. Pickle, 59 la. S4S ; Clough v. Seay, 49 la. Ill; Hunt V. Gray, 35 N. J. 227, 10 Am. Rep. 232. 24. Booth V. Powers, 56 N. Y. 22. AI.TERATION OF DOCUMENTS 373 (lences an executory contract and one which does not. In the former case the alteration avoids the instrument whether the alteration is fraudulent or not; while in the latter case the alteration, altho fraudulent, does not avoid what has been done.^^ Thus, a material alteration of a bill of sale after delivery of the goods does not divest the vendee of the right of possession.^® And erasures of the names of some of the cred- itors from the schedule, in the case of a deed of assignment for the benefit of creditors, will not revest the title to the property in the debtor. As said by Alderson, B., " Here, at the time when the deed was executed by the plaintiff (the debtor), the property passed; what is there to re- vest it?"^'' But where a tenant makes an unau- thorized materia] alteration in the lease his rights in. the premises are gone. He may not retain possession, nor prevent the landlord from' entering the premises.^* On the other hand, if the lease is executed in duplicate, and each party has a copy, an alteration by the tenant of his copy will not divest him of the estate.^^ And, as a general rule, where the alteration is made after 25. Cochran, V. Nebeke'r, 48 Ind. 459; Kendall v. Kendall, 12 Allen (Mass.) 92. See also Bishop on Contracts, § 758. 26. Rangier v. Vanorsdol, 50 la. 130. 27. West V. Steward, 14 M. & W. 47. 28. Bliss V. Mclntyre, 18 Vt. 466, 46 Am. Dec. 165. 29. Jones v. Hoard, 59 Ark. 42; Lewis v. Payn, 8 Cow. (N.Y) 71, 18 Am. Dec. 427. 374 THE LAW OF EVIDENCE the property iis conveyed the interest transferred is not aflfected.*" § 19. Effect of material alteration of a deed of land. — The cancellation or destruction of a deed of land does, not reconvey. the title to the grant- or. Hence a material alteration in the deed by the grantee, after delivery to him, does not, as a rule, divest him of the title. ^^ It destroys his right, however, to sue on the covenants in the deed.^^ The fact that the deed is recorded, after alterations of it by the grantee, does not, ordin- arily, change' the rule. It has been held, how- ever, that where the grantee alters the deed by substituting other grantees before recording it, this will not prevent: a subsequent deed by the grantor from passing title to a different grantee.*^ § 20. Effect of material alteration of a real es- tate mortgage. — In England, a mortgage in fee transfers the legal title ; and in that country the effect of an unauthorized material alteration of a mortgage by the mortgagee is the same as in the case of a deed. It does not revest the estate 30. HoUingsworth v. Holbrook, 80 la. 151, 20 Am. St. Rep. 411. 31. Linker v. Long, 64 N. C. 296 ; Woods v. Hilderbrand, 46 Mo. 284, 2 Am. Rep. 513; Stanley v. Epperson, 45 Tex. 644; King v. GilsOn, 32 111. 348, 83 Am. D«c. 269? Sharpe v. Orme, 61 Ala. 263; North v. Henneberry, 44 Wis. 306. 32. Woods V. Hilderbrand, supra; North v. Henneberry, supra, 33. Respass v. Jones, 102 N. C. 5. ALTERATION OF DOCUMENTS 375 in the mortgagor.**' It is said, however, that it is as much a release as cancelling a bond. While the English rule, has been, recognized in this country,''^ in most of the jurisdictions of this country a real estate mortgage, altho in form a transfer of tjtle, is regarde|d as merely a secur- ity for the payment of rnoney; and in these juris- dictions the question of ap alteration of the mortgage by the mortgagee affecting tlie, title to the land does not arise.*® In a few, states where the mortgagee is regarded as the holder of the legal title to the land a material alteration of the mortgage by him avoids the instrument and re- vests the title in the mortgagor.*'' •'■^■^ ■-'' § 21. Effect of material alteration of a mort- gage note.^The effect of a material alteration of a mortgage note by the payee depends upon the circumstances of the particular case. If the giving of the note extinguishes the original debt the alteration of it by the mortgagee, whether fraudulent or not, discharges the mortgage.** If the giving of the note does not extinguish the original debt, and the alteration of the note is not fraudulent, the mortgage is not discharged ;*^ 34. Harris y, O-vyen, ^yest's Ch. Rep. S27. 35. Kendall v. Kendall, supra. 36. Russell v. Re^d, 36 Minn. 376. ' 37. Mclntyre v. Velte, 153 Pa. St. 350. 38. Tate v. Fletcher, 77 Ind. ' 102: ' 39. Cheek v; Nail, 112 N. C. 370; Elliott v. Blair, 47-111. 342; Clough V. Seay, 49 la. Ill:'' 376 THE LAW OF EVIDENCE but if the alteration is fraudulent the mortgage is discharged.*" § 22. When recovery may be had on original consideration. — The right to recover on the original consideration, where the obligee makes a material alteration of the document, usually depends upon whether it was done innocently or fraudulently. If done innocently the obligee may recover; but if done fraudulently he may not.*^ Of course, where a promissory note is given in absolute payment of the indebtedness the original consideration is extinguished. § 23. Admissibility of an altered document in evidence. — Upon the question of the admissibil- ity in evidence of altered documents the deci- sions are not harmonious. They have been held admissible against a party on trial for a criminal offense, and also to prove fraud. *^ They also have been held admissible to prove collateral facts.** Some courts have held that an altered deed is admissible in evidence to prove the gran- tee's title;** while other courts have held the 40. Cases cited in foot-note 70. 41. Green v. Sneed, 101 Ala. 205 ; Bigelow v. Stilphen, 35 Vt. 521 ; Whitmer v. Frye, 10 Mo. 348. 42. Low V. Merrill, 1 Pin. (Wis.) 340. See also, Chitty on Bills, 191. 43. Parker v. Moore, 29 Mo. 218; Hutchins v. Scott, 2 M. & W. 809. 44. Hatch v. Hatch, 9 Mass. 307, 6 Am. Dec. 67; Akbaraa State Land Co. v. Thompson, 104 'Ala. 570 ; Doe v. Hirst, 3 Stark. 60, 14 E. C. L. 162. ALTERATION OF DOCUMENTS 377 contrary.''^ Altered receipts have been held in- admissible.*^ Also bills of sale.*'' Where the al- tered document lias been offered in evidence in an action on the original consideration some courts have held it admissible,*^ while other courts have held the contray.*^ § 24. Right to recover money paid upon an altered document. — As previously stated, where the alteration is fraudulent the whole transac- tion is vitiated ; and no recovery can be had even on the original consideration. Where the altera- tion is fraudulent it reaches not only the instru- ment, but the original consideration as well, and prevents recovery upon either.^" If the party guilty of the fraud may found a claim upon the original consideration, the rule itself would be defeated. To allow parties to take the chances of success in fraudulently dealing with the vvrit- ten obligations of those with vvhom they con- tract without risk of loss in case of detection, would be an encburagernent to this kind of 45. Batctelder v. White, 80 Va. 103; Bliss v. Mclntyre, 18. Vt. 466, 46 Am. Dec. 165. See also. Miller v. Lucb, 8a Cal. 257. 46. Elgin V. Hall, 82 Va. 680; Goodfellow v. Inslee, 12 N. J. Eq. 355. 47. Babb V. Clemson, 10 S. & R. (Pa.) 419, 13 Am. Dec. 684. 48. Sutton V. Toomer, 7 B. & C. 416, 14 E.' C. L. 66. 49. Low V. Merrill, supra; Courcamp v. Weber, 39 Neb. 533; Morrison v. Huggins, 53 la. 76. 50. Armstrong v. Penn, 105 Ga. 229, 31 S. E, R. 158; Warder, etc., Co. V. Willyard, 46 Minn. 531, 24 Am. St. Rep.. 250, 49 N. W. R. 300. 378 THE LAW OF EVIDENCE fraud. ^^ Where, however, the alteration is not fraudulent the reason for the rule stated above does not exist; and a recovery may be had on the original consideration.^^ As regards the right to recover the money paid upon the altered instrument, the rule is that it may be recovered as in a case where it is paid under a mistake of fact.^* Even where the party in paying the money was guilty of negligence he may recover, provided it would not be inequit- able to the other party owing to a change in his position due to the payment of the money.^* There are, however, two important exceptions to the foregoing rule. One is that a bank paying a bill of its own, in ignorance of the fact that its amount has been raised, cannot recover the amount so paid from a bona Ude holder. ^^ And the other is that a drawer is bound to know his drawer's signature, and cannot recover from a bona Ude holder money paid in ignorance of the 51. Mey«T V. Huneke, S3 N. Y. 412; notes, Am. St. Rep. 122. 52. Green v. Sneed, 101 Ak. 205, 46 Am. St. Rep. 119, 13 So. R. 277; Milkr v. Stark, 148 Pa. St, 164, 23 Atl. R. 1058; Kelly v. Trunible, 74 111. 428; Wilson v. Hayes, 40 Minn. 531, 12 Atn. St. Rep. 754, 42 N. W. R. 46. 53. Cheek v. Nail, 112 N. C. 370, 17 S. E. R. 80; Vogle v. Ripper, 34 111. 100, 85 Am. Dec. 298; Clough v. Seay, 49 la. Ill; Heath v. Blake, 28 S. C. 406, 5 S. E. R. 842. 54. Nat. Bank of Commerce v. Nat. Banking Assn., 55 N. Y. 211, 14 Am. Rep. 232. 55. Mackintosh v. Eliot Nat. Bank, 123 Mass. 393; Nat. Park Bank v. Ninth Nat. Bank, 46 N. Y. 77, 7 Am. Rep. 310. Redingiton v. Woods, 45 Cal. 406, 13 Am. Rep. 190. See also notes, 86 Am. St. Rep. 123. ALTERATION OF DOCUMENTS 379 fact that the drawer's signature was forged.^® It is to be observed, however, that the latter ex- ception applies only where the drawer's signature has been forged, and not to cases where the forgery is in the body of the instrument. This is owing to the fact that the drawee is under no obligation to know the handwriting in the body of the instrument. In such cases the latter of the two exceptions stated has no application, and the money paid may be re- covered. § 25. Effect of ratification of alteration.— Al- tho there may be doubt aS to the ratification of a forgery in some cases, the courts hold that an alteration of a document, altho amounting to a forgery, can be ratified." And where this is done the effect is the same as in the case of a prior authorization.^* What constitutes a rati- fication is governed by the rules of agency. It is essential that the act be done with a knowledge of all the facts. ^^ But even with knowledge of all 56. Nat. City Bank of Brooklyn v. Westcott, 118 N. Y. 468, 16 Am. St. Rep. 771, 23 N. E. R. 900; Park* v. Rosser, 67 Ind. SOO, 33 Am. Rep. 102; Redington v. Woods, sufra; Third Nat. Bank of St. Louis v. Allen, S9 Mo. 310. See also notes, 17 Am. St. Rep. 884; 86 Am. St. Rep. 124. 57. Wilson V. Hayes, 40 Minn. 531, 12 Am. St.. Rep. 754, 42 N. W. R. 467. , 58. Dickson v. Bamberger, 107 Ala. 293, 18 So. R. 290; Hagler v. State, 31 Neb. 144, 28 Am. St. Rep. 514, 47 N. W. R. 692; Booth v. Powers, 56 N. Y. 22; Bell- v. Mahin, 69 la. 408, 29 N. W. R. 331. 59. Perkins v. Windmill, etc., Co. ' v. Tillman, 55 Neb. 652, 75 N. W. R. 1098 ; Benedict v. Miner, 58 111. 19 ; Cutler v. Rose, 35 la. 456. 380 THE LAW OF EVIDENCE the facts a mere failure to object is not sufficient to amount to a ratification. ^^ On the other hand, suing on the instrument;*^ agreeing to pay the amoimt of the instrument f^ receiving indemnity from the principal debtor/* etc., with knowledge of the alteration, constitute in each case a suffici- ent ratification. § 26. Presumptions and burden of proof. — As regards presumptions the decisions are in hope- less conflict. There are at least six more or less distinct views upon the subject. These six views, as stated in " Hughes on Evidence,** are as fol- lows: "(i) a presumption exists that the altera- tion was made contemporaneously with, or be- fore, the execution of the instrument; (2) a presumption exists that it was made after the execution of the instrument; (3) no presump- tion exists in any case as to the time when it was made; (4) no presumption exists as to the time when it was made if no suspicious circumstances are apparent on the face of the instrument, but where there are suspicious circumstances con- nected with it there is a presumption that it was made after the execution of the instrument; (5) as a general rule, it is presumed to have been made contemporaneously with the execution of 60. German Bank v. Dunn, 62 Mo. 79. 61. Perkins v. Windmill, etc., Co. v. Tillman, supra. 62. Prouty v. Wilson, 123 Mass. 297; Montgomery v. Cross- thwait, 90 Ala. 553, 24 Am. St. Rep. 832, 8 So. R. 498.' 63. Hagler v. State, supra. 64. P. 214. ALTERATION OF DOCUMENTS 38 1 the instrument, but if any ground of suspicion is apparent upon the face of the instrument the law presumes nothing; (6) the presumption, if any, which arises, depends upon the character of the instrument. "*° And, as stated 'in "Hughes on Evidence," " The first of these views is based largely on the presumption of innocence, and is recognized in numerous decisions. ®® The second view is supported by comparatively few deci- sions, and it has been severely criticised. It still obtains, however, in a few jurisdictions, and seems to be confined for the most part to negoti- able instruments.®'' The third view is supported by many decisions®^ and is characterized, by at least one recent author,®® as the better view. The fourth view is supported by decisions of several, leading courts.'''^ The fifth view, according to 65. For an excelteiit discussion of this subject, and citations, ;se€ note, 86 Am. St. Rep. 128. 66. Hunt V. Gray, 35 N. J. L. 27; Hagan v. Merchants' Ins. Co., 81 la. 321, 25 Am. St. Rep. 493; Lewis v. Watson, • 98 Ala. 479, 39 Am. St. Rep. 82; Brand v. Johnrowe, 60 Mich. 210. 67. Gettysburg Nat. Bank v. Chisholm, 169 Pa. St. 565, 32 Atl. R. 730; Humphreys v. Guillaw, 13 N. H. 385, 38 Am. Dec. 499. 68. Merritt v. Boyden, 191 111. 136, 60 N. E. R. 907; Ward V. Cheney, 117 Ala. 238, 22 So. R. 996; Simpson v. Davis, 119 Mass. 269, 20 Am. Rep. 324; Wilson v. Haynes, 40 531, 42 N. W. R. 467, 12 Am. St. Rep. 754, 4 L. R. A. 196; Margin v. Tuttle, 80 Me. 207, 14 Atl. R. 207. 69. 2 Elliott on Evid., § 1505. 70. Smith V. United States, 69 U. S. 219; Powell v. Panks, 146 Mo. 620; Alabama etc., Land Co. v. Thompson, 104 382 THE LAW OF EVIDENCE Reynolds, is the American rule,''^ While the sixth view is supported by Stephen, Taylor and Greenleaf/^ as well as by many decisions."''^ Thayer says, " As regards the, proof of altera- tions in documents the cases are full of confu- sion. Fragments of substantive law embrace the rules of evidence relating to this subject; and it is further intolerably perplexed by a quantity of jargon about presumptions and the burden of proof which often conceals the lack of any clear apprehension of the subject on the part of those who use it, and often disguises the true character of sound -decisions. "'^* JK.nd Mr. Freeman, editor of " American State Reports," says, " Where the alteration is apparent the authorities are hope- lessly divided as to the presumptions arising from such apparent alteration. Any attempt to reconcile them would be useless, and an accurate classification of their varying views is impossible. They seem to fall, however, into four general classes, each of which is representative of a view opposed to that of the others: i. One line of cases holds that no presumption arises from an alteration apparent on the face of the instrument, but that the entire question of the time when the Ala. 570, 53 Am. St. Rep. 80 ; Collins v. Ball, 82 Tex. 259, 27 Am. St. Rep. 877; Bradley v. Dells Lumber Co., 105 Wis. 245., 71. Reynolds' . Steph. Evid., art. 89. 72. Greeiileaf Evid., §564. 73. Bailey v. Taylor, 11 Conn. 531) 541; Boothby v. Stanley, ■34 Me. 515, 516. 74. 'Thayer's Prelim. Treat, on Evid. 527. ALTERATION OF DOCUMENTS 383 alteration was made is for the jviry to consider in the light of all the evidence, intrinsic and ex- trinsic; 2. Another holds that an alteration ap- parent on the face of the paper raises a presump- tion that it was made after execution and deliv- ery; 3. A third line of authorities holds that the presumption that the alteration was made after execution arises only where the alteration or the facts surrounding it are suspicious ; and fin- ally it is held by another group of courts : 4. That an alteration, apparent on the face of the paper is, without explanation, presumed to have been made before delivery."^^ Cases, supporting these various views are cited below. '^^ 75. Notes, 86 Am. St. Rep. 129. 76. Class 1 : Merritt v. Boydon, 191 111. 136, 85 Am. St. Rep. 246, 60 N. E. R. 907; Neil v. Case, 25 Kan. 510, 37 Am. Rep. 259; Neff v. Horner, 63 Pa. St. 327, 3 Am. Rep. 555 ; Shepard v. Wbetstone, 51 la. 457, 33 Am. Rep. 143, 1 N. W. R. 753; -Robinson v. State, 60 Ind. 26; Coles v. Hills, 44 N. H. 227. Class 2: Beaman v. Russell, 20 Vt. 205, 49 Am. Dec. 775; Wilson v. Henderson, 17 Miss. 375, 48 Am. Dec. 716. Class 3 : Alabama, etc.. Land Co. v. Thompson, 104 Ala. 570, S3 Am. St. Rep. 80, 16 So. R. 440; Kelley v. Thuey, 143 Mo. 422, 45 S. W. R. 300; Collins v. Ball, 82 Tex. 259, 27 Am. St. Rep. 877, 17 S. W. R. 614; Bradley v. Dells Lumber Co., 105 Wis. 245, 81 N. W. R. 394; Smith v. United States, 69 U. S. 219; Cox v. Palmer, 1 McCrary, 431, 3 Fed. R. 16 (The doctrine is well ex- pressed in this case.). Class 4: Orlando v. Grt>oding, 34 Fla. 244, 15 So. R. 770; First Nat. Bank v. Franklin, 20 Kan. 264; Wilson v. Hayes, 40 Minn. 531, 12 Am. St. Rep. 754, 42 N. W. R. 467; Newman v. King, 54 Ohio St. 273, 56 Am. St. Rep. 384 THE LAW OF EVIDENCE When it is shown that an alteration subse- quent to the execution of the instrument has been made, a presumption arises that it was made by the holder, or by a party in privity with him, and not by a stranger to the instrument. Especially is this so where the instrument has been in the custody of the holder since its execu- tion." Where an alleged alteration is not apparent upon the face of the document the courts are agreed that the burden of proof is upon the party who alleges the alteration.''^ § 27. Same. Rule as to wills. — Perhaps, as a general rule, an unattested alteration in a will which is complete without it, even where there is no suspicious circumstance, is presumed to have been made after the execution of the will.''® It has been held, however, that where the altera- tion is entirely unexplained, and there is no cir- cumstance which casts a suspicion upon it, there 705, 43 N. E. R. 683; Richardson v. Fellner, 9 Okla. 513, 60 Pac. R. 270. n. National Ulster Bank v. Madden, 114 N. Y. 280, 11 Am. St. Rep. 633, 21 N. E. R. 408; Winter v. Pool, 100 Ala. 503, 14 So. R. 411; Maguire v. Erebmeier, 109 la. 301, 80 N. W. R. 395 ; Eckert v. Louis, 84 Ind. 99. 78. Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. Rep. 99; McClintock V. State Bank, 52 Neb. 130, 71 N. W. R. 978; Harris v. Bank of Jacksonville, 22 Fla. 501, 1 Am. St. Rep. 201; Montgomery v. Crossthwait, 90 Ala. 553, 24 Am. St. Rep. 832, 8 So. R. 498. 79. Toebbe v. Williams, 80 Ky. 661 ; Grossman v. Grossman, 95 N. Y. 145 ; Doe v. Palmer, 16 Q. B. D. 747, 15 Jur. 836. ALTERATION OF DOCUMENTS 385 is no presumption as to when it was made ; but that the onus is upon the party who seeks to de- rive an advantage from it to show that it was made before the will was executed.^" Where the will would be incomplete without the alteration, there is, as a general rule, a presumption that the altepation was made before the execution of the instrument.*^ " Where a will has been drawn with blanks left for the names of legatees and the amounts of the legacies, which blanks are after- wards filled up, but there is no evidence to show when, the presumption is that the blanks were filled in before execution, and altho there may- have been no blanks but the names of the lega- tees are found interlined, yet if the interlineation only supplies a blank in the sense, and appears to have been written with the same ink and at the same time as the res't of the will, the court will conclude that it was written before execu- tion."*^ But where a will is offered for probate thfe person ofifering the instrument should be pre- pared to show that the alteration was properly made, and explain a!,l suspicious circumstances.*^ " Whoever propounds an iristrument which, on the very face of it, exhibits grounds of great 80. Grossman v. Grossman, supra; In the Goods of Cadge, L. R. 1 P. & D. S43. 81. In the. matter of Voorhees, 6 Dem. (N. Y.) 162; In the Goods of Gadge, supra. 82. 1 Jar. on Wills 144. 83. In re Wilson, 8 Wis. 171. 386 THE LAW OF EVIDENCE doubt, must remove those grounds and clean up the doubts."^* §28. Same. Alterations in pencil.^ — As a gen- eral rule, alterations in pencil in a will, where the will is written in ink, are presumed deliberative and not final ; whereas those made in ink are pre- sumed final. ^^ It has been held, however, that those made in lead pencil have the same effect as those made in ink.^^ In the case of alterations in both ink and pencil the presumption as to each, as stated above, is even stronger. As stated by Sir J. Nicol, " There are various erasures, and crossings, and interlineations — some in pencil, some in ink; the general presumption and prob- ability are that, where alterations in pencil only are made, they are deliberative ; where in ink they are final and absolute; but when they are of both sorts the presumption as to each is strong- er; if the writer had made- up his niind, and in- tended the variation to be final, he would, in- stead of pencil, have used other material, ink; if he were deliberating only, and undecided, he would not use ink, but pencil."**^ § 29. Province of court and jury. — As regards the question of what constitutes matter for the 84. Cooper v. Bpckett, 4 Moo. P. C. C. 419, 4 Not. Cas. 685, 10 Jur. 931, 4 Marit & E. C. C. L. Cas. 68S (■the leading English case). 85. Gami v. Gregory, 3 De G. M. & G. 780; Mence v. Mence, 18 Ves. Jr. 348^ In the Goods of Hall, L. R. 2 P. & D. 367. 86. Tomlinson's Est., 133 Pa. St. 249, 19 Am. St. Rep. 637; Knox's Est,, 131 Pa. St.' 220, 17 Am. St. Rep. 798. 87. Hawkes v. Hawkes, 1 Hagg. 322. ALTERATIOiN OF DOCUMENTS 387 court to decide, and what matter of fact for the jury, the decisions are harmonious. Whether an alleged alteration is material or immaterial is a question for the court to decide.*^ This is owing to the' fact that the question involves the effect upon the legal rights of the parties. And in jur- isdictions where the courts recognize certain presumptions in the case of alterations apparent on the face of the instrument, it is for the court to decide whether an alleged alteration is appar- ent or not.®" On the other hand, when the ques- tion is whether an alteration exists or not, it is one for the jury to" decide.^'' And where the jury find that an alteration exists, it is also a question for them to decide by whom it was made ;®^. and if made by the obligee, or by his authority, whether the obligor gave consent.®^ 88. Johnsoj;! v. Moore, 33 Kan. 90, S Pac. R. 406; Brown v. Johnson, 127 Ala. 292, "85 Am. St. Rep. 134, 28 So. 579; Keene v. Monroe, 75 Va. 424 ; Milliken v. Marliti, 66 III 13; Wood V. Steele, 6 Wall.- (U. S.) 80. 89. Ives V. Farmers' Bank, 2 Allen (Masis.) 236. 90. Hunt V. Gray, 35 N. J. L. 175, 11 Am. Dec. 546; Schwarz V. Herrenkind, 26 111. 208. 91. Martin v. Kline, 157 Pa. St. 473, 27 Atl. R. 753; Wilson v. Hayes, 40 Minn. 531, 42 N. W. R. 467; Milliken v. Marlin, supra. 92. White v. Haas, 32 Ala,. 430, 70 Am. Dec. 548; Benedict / , V. Miner, 58 111. 19. 388 THE LAW OF EVIDENCE CHAPTER III. The Best Evidence Rule. § I. The rule. The best evidence rule re- quires that the highest degree or grade of testi- mony attainable, of which the particular case is susceptible, be produced.^ This does not neces- sarily imply, however, that the strongest or weightiest testimony attainable must be pro- duced.^ The rule has to do with the grade of the testimony rather than its. weight.^ It is conceiv- able that testimony of like grade may be of dif- ferent weight. The mere fact that other primary testimony is stronger and more nearly conclu- sive than the primary testimony offered is no reason for excluding the latter. Cn the other hand, secondary testimony may not be substi- tuted for primary or original testimony where the latter is attainable. The rule excludes tes- timony which indicates or presupposes that the party who offers it can produce a higher grade of testimony. Where secondary evidence is not 1. Com. V. Pendergast, 138 Pa. St. 633; Mcduff v. Detroit Eve. Journal, 84 Mich. 1 ; Vigns v. O'EaTinan, 118 111. 334; Wood's Succession 30 La. Ann. lOOZ; Kain v. Lar- kin, 131 N. Y. 300, 30 N. E. R. lOS. 2. Vigns V. O'Bannon, supra; Hewitt v. State, 121 Ind. 245, 23 N. E. R. 83 ; Crozier v. New Chester Water Co., 148 Pa. St. 130, 23 At!. R. 1123; Holmes v. Coryell, 58 -Tex. 680; State v. Cain, 9 W. Va. 559. 3. Hewett v. State, supra; Roberts v. Dover, 72 N. H. 147, 55 Atl. R. 895; Canfield v. Johnson, 144 Pa. St. 61, 22 Atl. R. 974; Com. v. Merrell, 99 Mass. 542. THE BEST EVIDENCE RULE 389 substituted for primary evidence the rule is not violated.* § 2. Origin of the rule. — The best evidence rule is of ancient origin. Originally it applied to all classes of testimony. At present, however, it is restricted to documentary evidence. § 3. Importance of the rule. — The best evi- dence rule is one of very great importance. Lord Chancellor Hardwicke, in speaking of it, says: "The judges and sages of the law have laid it 'down that there is but one general rule of evi- dence, the best that the nature of the case will admit."^ There' are, however, many important rules of evidence. § 4. Historical development of the rule. — Pro- fessor Thayer, in discussing the historical devel- opment of the best evidence rule, says : "During the latter part of the seventeenth century and the whole of the eighteenth, while rules of evi- dence were forming, the judges and text-writers were in the habit of laying down two principles, namely: (i) that one must bring the best evi- dence that he can, and (2) that, if he does this, it is enough. These principles were beginnings in the endeavor to give consistency to the sys- tem of evidence before juries. They were never literally enforced; -they were principles, and not 4. Canfield v. Johnson, supra; Elliott v. Van Buren, 33 Mich. 49, 20 Am. Rep. 668; Vigtis v. O'Bannon, supra; Barmirn V. Barnum, 9 Conn. 242, 5. Omychund v. Barker, i Atk. 21, 49 Willes 538, 26 Eng. Reprint IS. 390 THE LAW OF EVIDENCE exact rules ;k but for a long time they afforded a valuable test. As rules of evidence and excep- tions to the rules became more definite, the field for the application of the general principle of the best evidence rule v^^as narrower. But it was often resorted to in a manner which was very misleading. . . Always the chief example of the best evidence principle was the rule about proving the contents of a writing. But the ori- gin of this rule about writings was older than the best evidence principle, and that principle may- well have been generalizatio'n from this rule, which appears to be traceable to the doctrine of profert. That doctrine required the actual pro- duction of the instrument which was set up in pleading. In like manner it was said, in dealing with a jury that a jury could not specifically find the contents of a deed unless it had been exhib- ited to them in evidence. And afterwards when the jury came to hear testimony from witnesses it was said that witnesses could not undertake to speak to the contents of a deed without the production of the deed itself."^ § 5. Application of the rule in general. — As previously stated, it was formerly held that the best evidence rule appHed to all classes of testi- mony, whereas at present it is -restricted to docu- ments. It is also to be observed that it is re- stricted to cases where the documents are ten- dered as operative instruments. In other words, 6. Note, Thayer's Cas. on Evid. (1st ed.) 726. the' BEST EVIDENCE RULE 39 1 the rule is restricted to. the terms of the docu- ment; and does not ajpply to other facts wliich may concern it, Thus, where the question in issue is the contents of a given promissory note the rule is applicable But where the question in issue is the sale of the note the rule is not ap- plicable. As said by Mills, J., "We cannot agree . . . that the production of the note was neces- sary. It could only be held necessary by not at- tending to the distinction between proving the existence and contents of a note and the sale of a note. Of the former, the note is the better evidence ; but of the latter the. note furnishes no evidence. . . The existence of a note is as certainly perceived by the senses or acknowl- edged in conversation as that of any other article of commerce ; and it might as well be urged that before acknowledgement of a sale of any other article could be given in evidence the article itself must be produced in court in order that the court might see that it really existed, as that a note should be produced."'' Where a material fact in issue is whether a given letter was posted or not, it is not essential to produce the letter.,^ It is to be observed, however, that the courts, in applying the rule, are not harmon- ious. Thus, wl^iile some courts hold that the rule applies to questions of ownership," tenancy,^" 7. Lamb v. Moberly, 3 Mon. (Ky,.) 179. 8. Hagedorn v. Reid, 3 Camp. 377. 9. Street v. Nelson, 67 Ala. 504 ; contra, Westfield Cigar Co. 392 THE LAW OF EVIDEInTCE transfer of land/^ and transfer of chattels/^ other courts, as indicated in the foot-notes, hold the contrary. To the following classes of cases the rule has been held to apply: where the question is, the contents of a verdict;^* the contents of a judg- ment;^* whether a certain person has been con- victed of a crime i^^ the proceedings of a school board ;i^ whether a certain person has been im- prisoned in the penitentiary;^'' a sale of land by order of the court ;^^ the existence of a divorce,^® a warrant,^" an execution, ^^ or a writ;^^ the dis- continuance of a suit;^^ enlistment in the army V. Ins. Co., 169 Mass. 382; Kirkpatrick v. Clark, 132 111. 342. 10. Taylor v. Peck, 21 Grat. (Va.) 11; contra, Gilbert v. Kennedy, 22 Mich. 5, 18. 11. Showman ' V. Lee, 86 Mich. 556; contra, Primrose v. Browning, 56 Ga. 369. 12. Sirrine v. Briggs, 31 Mich. 443; contra. Price v. Wolfer, 33 Oreg. 15, 52 Pac. R. 759. 13. Abrams v. Smith, 3 Blackf. (Ind.) 95. 14. Northrop v. Cfiase, 76 Conn. 146', 36 Atl. R. 518. 15. People V. Reinhart, 39 Cal. 449; State v. Edwards, 19 Mo. 674. 16. AVhitehead v. School District, 145 Pa. St. 418; Kane v. School District, 48 Mo. App. 408. 17. State V. Lewis, 80 Mo. 110. 18. Phillips V. Costley, 40 Ala. 486. 19. State V. Thompson, 19 la. 299; Tice v. Reeves, 30 N. J. L. 314. 20. Ross V. Pleasants, 3 Pa. St. 408. 21. Perrs' v. Whipple, 38 Vt. 278. 22. Brush v. Taggart, 7 Johns. (N. Y.) 19. 23. Sheldon v. Frink, 12 Pick. (Mass.) 568. THE BEST EVIDENCE RULE 393 or navy;^* desertion of a soldier ;^^ a sale of pub- lic land f^ proceedings of a corporation as con- tained in the records ;^^ subscriptions for stock ;^^ how a perspn voted ;^^ granting of a pardon;^" the contents of public records and books, the heading of a hotel register ;^^ the fixed grade of a street f^ a tax title acquired by purchase under an execution ;^^ the fact that a public street has been vacated;^* any instrument which the law requires to be in writing ;^^ any contract which has been reduced to writing;^® any writing whose existence or contents are in dispute and which are material to the issue or to the credit of a wit- ness f'^ assignment of a lease f^ assignment of a 24. A*wood V. Winterport, 60 Me. 250. 25. Terrell v. Cokbrook, 35 Conn. 188. 26. Chicago v. McGraw, 75 111. 566. 27. Ferryman v. Greenville, 51 Ala. 507; Pittsburg Ry. Co. V. Clarke, 29 Fa. St. 146. 28. Taussig v. Glenn, 51 Fed. R. 409. 29. Lane v. Bailey, 29 Mont. 549, 75 Fac. R. 191. 30. Bartlett v. Patton, 33 W. Va. 71. 31. Granley v. Jermyn, 163 Fa. St. SOL 32. Livingston v. Hudson, 85 Ga. 835 ; Farrar v. Fe'senden, 39 N. H. 268. 33. Whitney v. Thomas, 23 N. Y. 281 ; Shiver v. Bentley, 78 Ga. 537; McKee v. McKee, 16 Md. 516. 34. Lathrop v. Central la. Ry. Co., 69 la. 105. 35.' Cox V. Ward, 107 N. C. 507; Fitzgerald v. Adams, 9 Ga. 471. 36. 1 Greenleaf Evid., §85. 37. Betoher v. Farren, 89 Cal. 73; Thayer v. Boyd, 31 Neb. 382. 38. Landt v. McCullough, 206 111. 214, 69 N. E. R. 107. 394 THE LAW OF EVIDENCE note f° assignment of an account ;*° contents of a bond;*^ assignment of a judgment;*^ contents of a letter;** contents of a telegram;** contents of account books ;*^ contents of a bill of lading;** written or printed rules, regulations or orders of a railroad company as to the duties of the em- ployees, or as to the management and running of its trains;*'^ contents of an application for a life-insurance policy;*^ contents of standard mor- tality tables ;*" contents of time-checks to em- 39. Stancill v. Spain, 133 N. C. 76, 45 S. E. R. 466. 40. Bruce v. Strawn Coal-Min. Co., (Tex.), 59 S. W. R. 52. 41. Georgia Pac. Ry. Co. v. Strickland, 80 Ga. 776, 12 Am. St. Rep. 282, 6 S. E. R. 27; Walker v. Armstrong, 2 Kan. 198. 42. Hawkins v. Rice, 40 la. 435 ; Lockhart v. Jones, 9 Rob. (La.) 381. 43. Pfus«ing V. Jackson, 208 111. 85, 69 N. E. R. 771 ; Post v. Inland, 184 Mass. 601, 69 N. E. R. 361 ; Stern v. Stanton, 184 Pa. St. 468, 39 Atl. R. 404; Rumbough v. So. Imp. Co., 112 N. C. 7S1, 17 S. E. R. 536, 34 Am. St. Rep. 528. 44. Magie v. Herman, 50 Minn. 424, 52 N. W. R. 909, 36 Am. St. Rep. 660; MoCormick v. Joseph, 83 Ala. 401, 3 So. R. 796; Anheuser.-Busch Aissoc. v. Hutmacher, 127 111. 652. 45. Bartlet v. Wheeler, 195 111. 445, 63 N. E. R. 169 ; Roden V. Brown, 103 Ala. 324, 15 So. R. 598; Wilson v. Morse, 117 la. 581, 91 N. W. R. 823 ; Brayton v. Sherman, 119 N. Y. 623, 23 N. E. R. 471. 46. Columbus, etc., Ry. Co. v. Tillman, 79 Ga. W7, 5 S. E. R. 135; Majther v. Goddard, 7 Conn. 304. 47. St. Louis, etc., Ry. Co. v. Bauer, 156 111. 106, 40 N. E. R. 448; Louisville, etc., Ry. Co. v. Orr, 94 Ala. 602, 10 So. 167. 48. Lewis V. Hudnian, 56 Ala. 186. 49. Erb V. Popritz, 59 Kan. 264,- 52 Pac. R. 871, 68 Am. St. Rep. 362. THE BEST EVIDENCE RULE 395 ployees of a railroad company;^" printed instruc- tions in an illustrated catalog concerning the management of an engine f'^ a discharge in bank- ruptcy;^^ probate of a will;^* rating of a person in the books of a commercial agency;^* the ex- istence and amount of a legacy;^' the existence and description of a devise;^® the appointment of an executor;^'' the fact that certain property . of the testator was not disposed of by his will;^* the terms of a wager reduced to writing ;^^ phy- sician's report of a physical examination made by him f^ contents of a newspaper article f'^ con- tents of an invoice of goods ;®^ contents of the inventory of a decedent's estate;®^ contents of 50. Chicago, etc., Ry. Co. v. Brown, 44 Kan. 384, 24 Pac. R. 497. 51. Richardson v. Douglas, 100 la. 239, 69 N. W. R. 530. 52. Regan v. Regan, 72 N. C. 195. 53. Graham v. Whitely, 26 N. J. L. 254; Jones v. Goodrich, 5 Moody, P. C. 16. 54. Deere v. Bagley, 80 la. 197, 45 N. W. R. 557~ 55. Miller V. Catlet, 10 Gratt. (Va.) 477. 56. Frontz v. Wood, 1 Hill (S. C.) 165. 57. Miller v. Catlet, supra. 58. Morrill v. Otis, 12 N. H. 466. 59. Frazee v. State, 58 Ind. 8. 60. Taylor v. Mod. Wood, of Amer., 42 Wash. 304, 84 Pac. R. 867. 61. Bond V. Central Bank, 2 Ga. 92. 62. Coder v. Stattsi 51 Kan. 382. 63. McCown v. Terral, 40 S. W. R. 54 (Tex.). 396 THE LAW OF EVIDENCE deeds,** real estate mortgages,*^ chattel mort- gages®® and leases.®'' On the other hand, it has been held that the rule does not apply to the following classes of cases : the receipt of goods by a common car- rier;®® the appointment of an agent ;®^ the receipt of a telegram;''® payment of a judgment;''^ pay- ment of a tax;''^ label ("rye whiskey") on a jug:'^ shipping marks on barrelheads;'* date of birth ;''^ attendance of jurors and witnesses at court ;''® inscription on boxes of a passenger killed while traveling on a train ;'" the value of 64. Ebersok v. Rankin, 102 Mo. 488; Collar v. Collar, 86 Mich. 507; Georgia Pac. Ry. Co. v. Strickland, 80 Ga. 776, 12 Am. St. Rep. 282 and note. 65. Soloman v. Creech, 82 Ga. 445. 66. Curtis v. Wilcox, 91 Mich. 229. 67. Burks V. Bragg, 89 Ala. 204. 68. Louisville, etc., Ry. Go. v. McGuire, 79 Ala. 395. 69. Whitfield v. Brand, 16 M. & W. 282. 70'. Connor v. State, 23 Tex. App. 378; Western Union Tel. Co. V. Cline, 8 Ind. App. 364. 71. Planters' Bank v. Borland, 5 Ala. 531. 72. Davis V. Hare, 32 Ark. 386. 73. Com. V. Blood, 11 Gray (Mass.) 74, 77. 74. United States v. DeGraff, 14 Blatch. 381, 385. 75. Morrison v. Emsley, S3 Mich. 564; State v. Woods, 49 Kan. 237; Com. v. Dill, 156 Mass. 226; State v. Hodgs- kins, 19 Me. 155, 36 Am. Dec. 743, anil note. 76. Massey v. Westcott, 40 111. 160; Baker v. Brill, IS Johns. (N. Y.) 260. 77. Kansas Pac. Ry. Co. v. Miller, 20 Colo. 442, 451, 462 ("if a' sign were' painted on a house, it would hardly be contended that the house would have to be produced, nor can it be said that the law converts the court room into THE BEST EVIDENCE RULE 397 goods ;^^ words on a tag attached to a valise ;'^* inscription on a banner;''" time when given trains are due f^ that a given person's name was not stated in a will ;®^ the date when a ship left port, the course she took, and the date of arrival at her destination;*^ mere possession of real pro- perty;** ownership of real property where the title is involved only collaterally;*'' transfer of possession of land ;*** use of certain lands for de- pot grounds f date when a writ was issued ;** the fact that a given suit has been tried;** that certain personal property, was listed for the pur- a receptacle for wagons, boxes, tombstones, and the like, on which one's name may be written.")- 78. Savannah Ry. Co. v. Hoffmayer, 75 Ga. 410. 79. Com. V. Morrell, 99 Mass. 542. 80. Rex V. Hunt, 3 B'. & Aid. 566, 22 Rev. Rep. 485, S E. C. L. 327 (prosecution for unlawful assembly; and the pur- pose of the testimony was to show the chajracter and in^- tention of the defendants.). 81. Chicago Ry. Co. v. George, 19 111. 510, 71 Am. Dec. 239. 82. Bulger v. Ross, 98 Ala. 267. 83. United States v. Gilbert, 25 Fed. Cac. No. 15, 204, 2 Sumn; 19. 84. Jacob Tome Institute v. Davis, 87 Md. 591, 41 Atl. R 166; Deu V. Ha,milton, 12 N. J. L. 109. 85. Central Ry. Co. v. Whitehead, 74 Ga. 441; Alabama Gt. So. Ry. Co. V. Johnston, 128 Ala. 283, 29 So. R. 771. 86. Jactob Tome Institute v. Davis, supra; Martin v. Bowie, 37 ^. C. 102, 15 S. E. R. 736. 87. Fowler v. Farmers' Loan Co., 21 Wis, 77. 88. Deu v. Hamilton, 12 N. J. L. 109. 89. Johnston v. Hamburger, 13 Wis. 195. 398 THE LAW OF EVIDENCE pose of taxation;'" the receipt of rent;®^ ten- nancy and occupancy;"^ the fact that notices of a sale were posted;®* contents of a deed which comes into the case only collaterally;'* identity of a person, thing, or document;'^ the fact that articles of incorporation were filed;®® the fact that directors of a corporation were elected;''^ conversion of a document;'® publication of a no- tice;" publication of an ordinance.^"'' § 6. Application of the rule to chattels. — As regards the application of the rule to material objects other than paper the decisions are not harmonious. Lord Kenyon applied it to a bushel 90. Hewitt V. State, 121 Ind. 245. 91. Wilcox V. Bates, 58 Wis. 128. 92. Central Ry. Oo. v. Wihitehead, supra; Rayner v. Lee, 20 Mich. 384. 93. McMillan- v. Baxley, 112 N. C. 578; Lavaretta v. Hal- combe, 18 Ala. 503. 94. Tuckfer v. Welsih, 17 Mass. 160, 9 Am. D©c. 137; Palmer V. Tripp, 8 Cal. 95. 95. Logan v. Gray, Tapp (Ohio) 69 (persons alleged to have been married) ; Hadky v. Citizens' Sav. Bank, 123 Mass. 301 (piece of land) ; Lewis v. Healey, 73 Conn. 744, 48 Atl. R. 212 (check) ; Goddard v. Sawyer, 91 Mass. 78 (promissory note) ; Citizens' Bank v. Rhutasel, 67 la. 316, 25 N. W. R. 261 (chattels covered by mortgage); Ames V. First Div. St. Paul, etc., Ry. Co., 12 Minn. 412 (lumber referred to in bill of sale). 96. Johnson v. Crawfordsville Ry. Co., 11 Ind. 280. 97. Partridge v. Badger, 25 Barb. (N. Y.) 146. 98. Bucher v. Jaratt, 3 B. & B. 143 (leading case). 99. Lingle v. Chicago, 172 111. 170. 100. Teft v. Size, 10 III. 432. THE BEST EVIDENCE RULE 399 measure.^ And later it was applied to a dog.^ According to the iliodern rule, however, it is confined to writings. But there is still a want of harmony as regai'ds the application of the rule to inscriptions on material objects other than paper or parchment. It has been held to apply to an inscription on a coffin plate, ^ and to an in- scription on a ring;* while, on the other hand, it has been held not to apply to an inscription on boxes, ^ or to- shipping marks on bai:rel heads.* It also has been held to apply to the plan of a house,'' the wrapper of a butter package,^ the address on a hamper,® and the post mark on an envelope ;" and not to apply to a label on a jug,^'- a superscription on an envelope,^^ an inscription on a tag attached to a traveling bag,^^ and an inscription on a banner.^* Dean Wigmore says, "It is impossible to say that any settled doctrine has found favor re- specting the application of the rule to material 1. Chenie v. Watson, Peake, Add. Cas. 123 (1797). 2. .Lewis V. Hartley, 7 C. & P. 405 (1835). 3. Reg. V. Edge, cited on Wills on Circum. Evid.(Sth od.)212. 4. Reg. V. Farr, 4 F. &. F. 336. 5. Kan. Pac. Ry. Co. v. Miller, 2 Colo. 442, 451, 462. 6. United States v. DeGraff, 14 Blatch. 381, 385. 7. Bryant v. Stilwell, 24 Pa^ St. 314,, 317. 8. Write V. State, 88 Md. 436, 41 Atl. R. 495. 9. Reg. V. Himley, 1 Cox Cr. Cas. 13. 10. Rex V. Johnson, 7 East, 65, 66. 11. Com. V. Blood, 11 Gray (Mass.) 74, 11. Yl. United States v. Babcock, 3 Dillon, 571, 574. 13. Com. Morrell, 99 Mass. 542. 14. King V. Hunt, 3 B. & Aid. 566. 400 THE LAW OF EVIDENCE objects, not paper, bearing inscriptions in words. There are inherent difficulties. It is impracti- cable to base any distinction upon the material bearing the inscription, for a notice-board or a tombstone may deserve the application of the rule as well as a sheet of paper. Nor is it prac- ticable to distinguish according to number of words; for each number is but one higher than the preceding, and a broker's note of ten words, or a baggage-check of a few "initials may need inspection as mtieh as a lengthy lease for ninety- nine years. Nor can the purpose of the words be material ; for the memorandum-tick made for pri- vate verification may become as important as the deed intended for public registration. No court seems to have attempted, and certainly no court has achieved, a satisfactory test for the distinction drawn. There are precedents requir- ing and precedents not requiring production, — pre- cedents often entirely irreconcilable if one were seek- ing an inflexible rule; the rational and practical so- lution is to allow the trial court in discretion to re- quire production of an inscribed chattel wherever it seems highly desirable in order to ascertain accur- ately a material fact."^^ § 7. Secondary evidence. — Secondary evidence presupposes the existence at some time of pri- mary or original evidence. And where the latter is attainable the former is inadmissible. Under certain circumstances, however, secondary evi- 15. Wigmore on Erid., Vol. II., § 1182. THE BEST EVIDENCE RULE 40I dence is admissible. As stated in "Hughes on Evidence," it is admissible "(i) When the original is lost and a reasonable but unsuccessful search has been made for it.^® (2) When the original is in the hands of the adverse party and he fails to produce it after receiving reasonable notice to do so.^'' (3) When the original is beyond the jurisdiction of the court.^* (4) When the nature of the original is such as to render it practically immovable.^® (5) When the original is in the hands of a stranger who is not legally bound to produce, and who, after being served with a sub- poena duces tecum, or after being sworn and ad- mitting that the original is in court, refuses to produce it.^" (6) When the original consists of numerous documents which cannot be examined conveniently in court, and the general result of all of them is the fact sought to be proved, and that fact is ascertainable by calculation, and the witness who' testifies to it is skilled in the ex- amination of documents.^^ (7) When the evi- dence ofifered is collateral to the fac,t in issue. ^^ (8) When the original is a public document. ^^ 16. Riggs V. Taylor, 9 Wheat. rnish one party by allowing his adversary to recover whdt does not belong to him, or to defend unjustly against a proper claim. "^'' Another consideration is that the adverse party who refuses to produce pri- mary evidence after receiving notice to do so may be compelled by a subpoena duces tecum to produce it.^^ Another probable consequence of his refusal to produce the primary evidence is that the jury will draw inferences frorrt the re- fusal unfavorable to -him. In some states there are statutes which entitle a party to discovery and inspection; and under some of these stat- utes judglnent by default may be entered in some cases against the adverse party who has refused to produce the primary evidence. Others ex- pressly prohibit him from subsequently produc- ing the instrument at the trial. ^^ § 24."* Recorded documents. — Under the regis- tration system which obtains in this country, statutes generally provide that properly certi- fied copies of a large class of recorded documents are to be considered the same as primary evi- denced^ 30. Moulton V. Mason, 21 Mich. 363, 370. See also, Tewks- berry v, Schulenberg, 48 Wis. 577, 580; State v. Marsh, 70 Vtt. 288, 40 Atl. R. 836 (rests largely in the sound dis- cretion of the trial court). » 31. Moulton V. Mason, supra. 32. Wigmwe an Evid., § 1858. , 33. Doe V. Ross, 7 M. & W. 102 ; Broom v. Woodman, 6 Car. & P. 205, 25 E. C. L. 396; Rex v. Hunt, 3 B. & Aid. 506. THE BEST EVIDENCE RULE 42 1 25. Degrees of secondary evidence. — Accord- ing to the English rule ther^ are no degrees of secondary evidence. x\s said by Phillipps, "In secpndary evidence, there are no degrees, no precedence in point of admissibility."** Accord- ing to this rule, oral evidence of the contents of a document is equally admissible with a written or letter-press copy of it.*^ And oral evidence of the testimony of a deceased witness is equally admissible with the court stenographer's record of it, where the latter has not been made primary evidence by statute.*" As said by Starkie, "With reference to the question of admissibility there are no degrees of secondary evidence, but where it is admissible at all, even parol evidence may be received, notwithstanding an attested copy or other better secondary evidence is in exis- tence."*^ And a similar view is also expressed by Best*^ and Taylor.*^ J.n this country both the courts and the text writers are at variance upon this question. Some favor the English rule;*" but the great weight 34. 2 Phillips on Evid. (10th Eng. ed.) S68. 35. Goodrich v. Weston, 102 Mass. 362, 3 Am. Rep. 469. 36. Jeans v. Wheedon, 2 Moo. & Rob. 486 ; Rex v. Christo- pher, 4 Cox Cr. Cas., 76; State v. McDonald, 65 Me. 466. 37. iStarkie on Evid. (8th Am. ed.) 544. 38. Best on Evid. (1st Am. ed.) §483. 39. Taylor on Evid., § 495 ; Rawlings v. Y. M. C, A., 48 Neb. 216, 66 N. W. R. 1124. 40. Rawlings v. Y. M. C. A., 48 Neb. 216; Dix v. Akers, 30 Ind. 431; Com. v. Smith, 151 Mass. 491, 24 N. E. R. 677; Magie v. Hermann, SO Minn. 424, 52 N. W. R. 909, 36 422 THE LAW OF EVIDENCE of authority is to the contrary.*^ The latter view- may be said to constitute the American rule. As said by Elliott, "The rule established, and clearly deducible from the majority of American author- ities, however, as to secondary evidence, is the same -in effect as the rule between primary and secondary evidence ; ' that is, that when secon- dary evidence is properly admissible, it must be the best that in the nature of the case can be produced, or the best kind of that character of evidence which appears to be in the power of the party to produce!"*^ This view obtains in the federal courts. "The principle established by this court as to secondary evidence ... is, that it must be the best the party has in his power to produce."*^ Letter-press copies are con- sidered the best secondary evidence of their con- tents ; .and according to the American rule parol Am. St. Rep. 660; Maijney v. Crowell, 84 N. C. 314. See also, Mattocks v. Stearns, 9 Vt. 326; Belk v. 'Meagher, 3 Mont. 65. 41. Steven-son v. Hoy, 43 Pa. St. 191; Illinois Land Co. v. Bonner, 75 111. 315; Proteotion Life Ins. Co. v. Dill, 91 111. 174; Johnson v. Ashland Lumber Co., 52 Wis. 458; Nason v. Jordan, 62 Me. 480; Davies v. Pettitt, 11 Ark. 349; Blade v. Noland, 12 Wend. (N. Y.) 173, , 27 Am. Dec. 305; Higgins v. Reed, 8 la. 298, 74 Am. Dec. 305; Martin v. Brand, 182 Mo. 116, 81 S. W. R. 443; Williams v. Waters, 36 Ga. 454; Harvey v. Thorpe, 28 Ala. 250, 65 Am. Dec. 344; Western Union Tel. Co. v. Hines, 94 Ga. 430, 20 S. E. R. 349. 42. 2 Elliott on Evid. 515. 43. Cornett v. Williams, 20 Wall. (U. S.) 226. See also, Ren- ner v. Bank of Columbia, 9 Wheat. (U. S.) 581, 587. THE BEST EVIDENCE RULE 423 evidence of their contents is inadmissible, unless their absence is satisfactorily accounted for.** A duplicate is of a higher grade than an exam- ined copy; and an* examined copy is of a higher grade than oral testimony.*^ Oral evidence of the contents of a lost or destroyed will is inad- missible where a copy of the will can be pro- duced.*® Oral evidence of a lost deed is inadmis- sible where the record, or a certified copy there- of, can be produced.*^ Oral evidence of the con- tents of a letter is inadmissible where a facsimile of the original can be produced.*^ The contents of ah original document may not be proved by a copy of a certified copy of the orjginal docu- ment.*® According to the English rule oral evidence of the contents of a lost deed is admissible al- though a record of it exists and can be pro- duced.^" And according to this rule oral evi- dence of a lost or destroyed letter is admissible 44. Ford V. Cunningham,- 87 Cal. 209, 25 Pac. R. 403 ; Steven- son V. Hoy, supra. 45. Shedden v. Heard, 110 Ga. 461, 467, 35 S. E. R. 707 ("There are degrees of secondary evidence and the best' should .always be produced. Thus a duplicate is better than a copy, and an, examined copy than oral evidence.")- 46. Illinois Land, etc., Co. v. Bonner, supra. 47. Aurora Bank v. Linzee, 1,66 Mo. 496, 65 S. W. R. 735; Mariner v. Saunders, 10 111. 113; Brotherton v. Mart, 6 Cal. 488. 48. Stevenson v. Hoy, supra. 49. Dyer v. Hudson, 65 Cal. 372. 50. Simpson v. Edens, 14 Tex. Civ. App. 235, 38 S. W. R. 474. 424 THE LAW OF EVIDENCE without accounting for an existing copy of it.^^ In the case of a lost letter oral evidence of its contents maybe given by any one who has per- sonal knowledge of the same, even when the party who received the letter is in court. ^^ Where a deed is on record in the office of the register of deeds, and also on record in the office of the secretary of state, and the" deed is lost, and a copy of each record is made, either copy is admissible.^^ Where by statute, certified or ex- amined copies are made admissible as primary evidence, parol evidence is inadmissible in the absence of proof that certified copies are not at- tainable.^* All the courts sustain this rule. It is peculiarly applicable to certified or examined copies of public records. § 26. Application of the best evidence rule to telegrams. — -The best evidence rule is applicable to telegrams the same as to other writings. Secondary evidence is inadmissible where the primary evidence is available. ^^ The courts are" not agreed, however, as to what constitutes the primary evidence. Some hold that it is the writ- Si. Brown v. Woodman, 6 C. & P. 206, 25 E. C. L. 396. 52. Drish v. Davenport, 2 Stew. (Ala.) 266. 53. Osborne v. Ballew, 29 N. C. 415. 54. Robertson v. DuBoise, 76 Tex. 1 ; Culver v. Uthe, 133 U. S.-6S5; Redd v. State, 65 Ark. 475, 47 S. W. R. 119. 55. Barons v. Brown, 25 Kan, 410; Nickersoti v. Spindell, 164 Mass. 25, 41 N. E. R. 105 ; McCormkk v. Joseph, 83 Ala. 401; Blair v. Brown, 116 N. C. 631; Brownlee v. Reiner, 147 Cal. 641, 82 Pac. R. 324; Western Union Tel. Co. v. Collins, 45 Kan. 88, 25 Pac. R. 187. THE BEST EVIDENCE RULE 425 ten message delivered by the sender to the tele- graph company for transmission. Others hold that it is the written message delivered by the telegraph company to the party to whom it is sent. The latter view is the English rule,^* while the former is the American rule.-^^ The question is, whose agent is the telegraph company? If it is the agent of the sender the American rule is -cor- rect.! If it is the agent of the party to whom the telegram is sent the English rule is correct.^* According- to the American rule, if the tele- gram is lost, or destroyed in good faith, after it is received by the party to whom it is sent, oral evidence is not admissible without satisfactorily accounting for the non-production of the written message delivered to the telegraph company for transmission.^* This is owing to the fact that the written message delivered by the company to the party to whom it is sent is considered the primary evidence ; and to the further fact that the written message delivered to the company for transmission is better secondary evidence of the contents of the telegram than the oral evi- dence. On the other hand, according to thie En- glish rule, if the written message delivered to the company for transmission is lost, or de- stroyed in good faith, oral evidence of its con- 56. Henkel v. Paipe, L. R. 6 Exch. 7. 57. NickerstMi v. Spindell, supra; Anheuiser Brewing Co. v. Hutmacher, 127 111. 652; Saveland v. Green, 40 Wis. 431. 58. Williams v. Bricfcell, -37 Miss. 682, 75 Am. Dec. 88. 59. Cases cited in foot-note .57. 426 THE LAW OF EVIDENCE tents is admissible without accounting for the non-production of the written message delivered to the party to whom the telegram is sent.®" This is owing to the fact that the written message de- livered to the company for transmission is con- sidered the primary evidence ; and to the further fact that according to the English view there are no .degrees of secondary evidence. The oral evi-_ dence and the written message delivered to the party to whom the telegram is sent are, accord- ing to the English view, secondary evidence of equal grade: Under either rule, to render secondary evi- dence admissible the genuineness of the original must be shown.*^ Where the original is beyond the jurisdiction of the court, it has been held that .secondary evidence of its contents is ad- missible."^ It also has been held that where it is customary for the company to destroy mes- sages after a certain time, secondary evidence of their contents may be, admitted after that time."^ 60. Henkel v. Pape, supra. 61. Cobb V. Glenn Boom & L. Co., 57 W. Va. 49, 110 Am. St. Rep. 734 amd note pp. 764-771 ; Reynolds v. Hendricks, 16 S. D. 602, 94 N. W. R. 694; Lewis v. Havens, 40 Conn. 363. 62. Whilden v. Merch. Bank, 64 Ala. 1, 38 Am. Rep. 1, and note; Barons v. Brown, 25 Kan. 410; Elwell v. Mersick, SO Conn. 272. 63. Western Union Tel. Co. v Collins, 4S Kan. 88, 25 Pac. R. 187; Riordan v. Guggerty, 74 la. 688, 39 N. W. R. 107; Oregon Steamship Co. v. Otisj 100 N. Y. 446, S3 Am. Rep. 221. THE BEST EVIDEJfCE RULE 427 Where there is only one telegram transmitted it seems clear that the telegraph comptiny is the agent of the party who sends the message. It follows, therefore, that in such case the primary evidence is the written message received by the party to whom the telegram is sent.*** This is in accord with the American rule. Where an order is sent by telegraph, the company is the agent of the sender; and the written message delivered to the party to whom the telegram is sent is the pri- mary evidence."^ Where a reply telegram is sent, imposing new conditions, the written message received is the primary evidence.®® W^here a telegram is relied upon to establish a material fact, or to sustain the action, a copy of the message sent has been held inadmissible, unless it is shown that the original message left at the transmitting office is proved to be lost, or destroyed in good faith, or that the original mes- sage, and the office from which it was sent, are beyond the jurisdiction of the court.®'' The gen- uineness of a telegram may be shown by prov- ing the handwriting of the sender, or by proving that it was sent by his direction or authority.®® 64. Anheusier Brewing Co. v. Hutmacher, 127 111. 652; Nick- erson v. Spindell, 164 Mass. 25, 41 N. E. R. 105. 65. Western Union Tel. Co. v. Shatter, 71 Ga. 760; Slave- land V. Green, 40 Wis. 431. 66. Durkee v. Vermont C. Ry. Co., 29 Vt. 127. 67. Smith v. Eas,ton, 54 Md. 138, 39 'Am. Rep. 355. 68. Whilden v. Merchants' Bank, 64 Ala. 1; United States V. Babcock, 3 Dill. (U. S.) 576. 428 THE LAW OF EVIDENCE "" It has been held, however, that a reply telegram, answering questions asked the sender by a pre- vious telegram addressed to him, is sufficient proof of his receipt of the latter to justify its ad- mission in evidence against him."^ § 27. Application of the best evidence rule to telephonic communications. — Strictly speaking, the best evidence rule has but slight application to conversations thru a telephone. By analogy, however, the courts have broadened the scope of the rule by applying it to telephonic communi- cations. Where two persons converse thru a ' telephone the' central operator is regarded as the agent of both pal-ties.'^" The conversation in such case is not hearsay. It is regarded as the declaration of an agent, made within the scope of the agency relation, during the progress of a transaction in which the operator acts as the representative of the two principals.''^ Where the person vvho receives the message recognizes the voice of the sender there can -be but slight objection, if any, to his being allowed to testify to the communication received.''^ And where the conversation is carried on thru a telephone in a business house or office the conversation is ad- missible, even although the voice is not recog- 69. State V. Sawtelle, 66 N. H. 4S8. 70. Oskamp v. Gadsden, 35 Neb. 7, 37 Am. St. Rep. 428 and note, 17 L. R. A. 440 and note; Sullivan v. Kuykendall, 82 Ky. 486, 56 Am. Rep. 901-906. 71. Oskamp V. Gadsden, 35 Neb. 7. 72. Lord Elec. Co. v. Morrill, 178 Mass. 304. THE BEST EVIDENCE RULE 429 nized.^^ "When a person places himself in con- nection with the telephone, system through an instrument in his office, he thereby invites com- munication in relation to his business through that channel. Conversations so held are as ad- missible in evidence as personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be in relation to the business then carried on ; and the fact that the voice at the telephone was not identified does not render the conversation inadmissible."''^* But testimony of a conversation by telephone be- tween the plaintiff and some one at the defend- ant's place of business is not admissible against the defendant in the absence of proof as to the identity of the person with whom the plaintiff conversed.''^ Where an intermediary carries on a conversation by telephone with A, and repeats it to B, some courts hold that in an action between A and B the conversation, if material, is admis- sible against B, on the ground that the inter- mediary, in such case, acts as B's agent.^® Other 73. Missouri Pac. Ry. Co. v. Heideijheimer, 82 Tex. 195, 27 Am. St. Rep. 861, 866; People v. Ward, 3 N. Y. Crim. R. 483, Sll. 74. Wolfe V. Missouri Pac. Ry. Co., 97 Mo. 473, 10 Am. St. Rep. 331. 75. Obermaain Breiwing Co. v. Adams, 35 III. App. 540; Lord Electric Co. v. Morrill, 178 Mass. 309, 59 N. E. R. 807; Shawyer v. Cham'berlain, 113 la. 742, 84 N. W. R. 661; Deering & Co. v. Shimpik, 67 Minn. 348, 69 N. W. R. 1088. 76. Sullivan v. Kuykendall, supra. ' 430 THE LAW OF EVIDENCE courts, however, hold the contrary, on the ground that the conversation is hearsay.'^''^ A by- stander in a telephone office may testify to the part heard by him of a conversation by telephone, where it is shown aliunde to have been between the parties to the suit and upon the subject mat- ter thereof J^ Where a notary takes an acknowl- edgement by telephone, and the evidence shows that the nature and contents of the instrument were correctly stated to the party executing it, and no fraud appears, the acknowledgement is valid. '^^ An answer by telephone, purporting to have been sent by the defendant in reply to a question sent thru the same medium by the plain- tiff, is admissible in evidence without positive proof that it was sent by the defendant.*" § 28. Presumption and burden of proof as to secondary evidence. — As previously stated, in England there are no degrees of secondary evi- dence ; but in this country, by the Veight of au- thority, the contrary view obtains. In jurisdic- tions which sustain the latter vicAV, when a foun- dation has been laid for the introduction of sec- ondary evidence, that which, is offered is pre- sumed to be the best of its kind attainable; and the party who refutes it has the burden of show- 77. Wilson, v. Coleman, 81 Ga. 297; German Savings Bank V. Citizens' Nat. Bank, 101 la. 530, 70 N. W. R. 769. 78. Miles V. Andrews, 153 111. 262. 79. Banning v. Banning, 80 Cal. 271. 80. Globe Printing' Co. v. Stabl, 23 Mo. App. 451. For notes on this subjec* see 10 Am. St. Rep. 135; 17 L. R. A. 440. THE BEST EVIDENCE RULE 43 1 ing the contrary. "Where satisfactory proof is made of loss or inability to produce an instru- ment which the law does not make provision for recording and copying, and the evidence fails to disclose the existence of any copy or other evi- dence better* than parol (oral) known to_the of- fering party and within his power to produce, and there is nothing appearing to indicate a copy, or fraud or deception, then the. presumption arises that there is no copy or other evidence better than parol within the power of the party to produce, a prima facie case is made for the ad- mission of parol testimony of the contents of the instrument, and such testimony will be ad- mitted, unless the objecting party will produce the better evidence or show that it does exist and was known to and might have been produced by the ofifering party."^^ But the burden of showing facts which constitute a proper founda- tion for the introduction of secondary evidence, such' as loss of the original, reasonable search for it and failure to find it; or, destruction of the original, inaccessibility of it, etc., rests upon the party who seeks to introduce the secondary evi- dence.*^ 81. C. C. C. & St. L. Ry. Co. v. Newlin, 74 111. App. 638, 647. 82. Dyer v. Fredericks, 63 Me. 173; Hansen^v. Amer, Ins. Co., 57 la. 741, 11 N. W.' R. 670; Emig v. Diehl, 78 Ea. St. 3S9. 432 THE LAW OF EVIDENCE CHAPTER IV. The Parol Evidence Rule. § I. The rule. — The parol evidence rule, briefly stated, is as follow^s : Verbal ^testimony is inadmissible to vary, add to, or contradict" the contents of a document, or to modify its legal import. § 2. Scope of the rule. — Originally, the rule was confined to sealed documents; but in 1771 the English Court of Common Pleas extended it to documents not under seal.^ It is now applicable to contracts, deeds, mortgages, assignments, promissory notes, wills, judgments and other ju- dicial proceedings, and to all other transactions which have been reduced to writing and are evi- denced by a document or a series of documents. § 3. Misleading use of the term "parol." — The term "parol," which is of French origin, has va- rious meanings. It has a literal meaning and sevei^al conventional meanings. Its literal mean- ing is word, or speech. In this sense it is syn- onymous with the term "oral." In the law of contracts, pleadings and evidence it has a con- ventional meaning. A parol contract is one not under seal. It may be oral, or in writing. It is a simple contract, as distinguished from a con- trjact under seal. In the law of pleadings the 1. Meres v. Ansell, 3 Wills, Com. Pleas 27S. THE PAROL EVIDENCE RULE 433 term "parol" signifies the pleadings themselves.* And in the law of evidence it is applicable to both oral statements and written statements de hors the particvtlar document. Since the term "oral" is confined to spoken words, and the term "verbal" is applicable to both spoken and written words, it follows that, in stating the parol evidence rule, the latter term is preferable to the former. The two terms, how- ever, are frequently used interchangeably, but often incorrectly so. § 4. Same. Statement by Dean Wigmore. — As regards the vagueness of the use of the term "parol," Dean Wigmore says : "The matter exclud- ed by the rule is not inherently or even most com- monly anything that can properly be termed 'parol.' That word (in spite of its numerous other derived applications) signifies and implies essentially the idea 'oral,' i. e. matter of speech, as contrasted with matter of writing. Now, so far as the phrase 'parol evidence rule' conveys the impression that what is excluded is excluded because it is oral-^ — becaiise somebody spoke or acted other than in writing, or is now offering to testify orally — , that impression is radically incorrect. When the prohibition' of the rule is applicable, what is ex- cluded may equally be written as oral, — may be letters and telegrams as well as conversations; and where the prohibition is applicable on the 2. Bouvier's Law Diet. 576. See also, Professor Thayer's scholarly artick in 6 Harvard Laiw Review 325, and the excellent note in 56 Am. St. Rep. 659. 434 THE LAW OF EVIDENCE facts to certain written material, nevertheless for the very same transaction certain oral material may not be prohibited. So that the terrri 'parol' not only affords no necessary clue to the mater- ial excluded, but is even positively misleading. It must be understood to be employed in a pure- ly unnatural and conventional 'sense. "^ § 5- Same. Professor Thayer's view. — Pro- fessor Thayer, in commenting upon the vague- ness of the parol evidence rule, says : "Few thing in our law are darker than this, or fuller of subtle difficulties. It appears^ to me that the chief reason for it is that most of the questions brought under this rule are out of place; it is true, in a very great degree, that a mass of in- congruous matter is here grouped together, and then looked at in a wrong focus. Because the rule deals with evidences, with Writings, — things the nature of which it is to be evidence of what they record, — it is assumed that it belongs to the law of evidence. But in truth most of the mat- ters with which it is concerned have nothing to do with the law of evidence. It heightens the confusion, however, to find that some of them belong there."* § 6. Basis of the rule. — The two chief reasons assigned for the parol evidence rule are uncer- tainty of memory and danger of falsehood. In an early case Lord Coke assigns as the basis of the 3. Wigmore on Evid., Vol. IV. 3369. 4. 6 Harvard Law Review 325. THE PAROL EVIDElsrCE RULE 435 rule the uncertainty of "slippery menjory."^ An- other judge assigns as the basis "the treachery of memory and the falsehood of men."* Another judge says "If it were not for the rule no man would be able to protect himself by the most solemn forms and attestations against falsehood, misrepresentation and perjury."^ And Shaw, C. J., says, "The rule is founded on the long ex- perience, that written evidence is so much more certain and accurate than that which rests in fleeting memory only, that it would be unsafe, when parties have expressed the terms of their contract in writing, to admit weaker evidence to control and vary the stronger, and to show that the parties intended a different contract from that expressed in the writing signed by them."* Were the rule otherwise, written in- struments would be of comparatively little value. Moreover, the temptation to commit perjury would be greatly increased.® In some states there are statutes which ex- pressly provide that parol testimony is inadmis- sible to vary or contradict the contents of a writ- ten instrument; but the rule has existed from early times, independent of statute." 5. Rutland's Case, S Coke 26. 6. Rearick's Executors v. Rearick, IS Pa. St. 66, 72. 7. Irvin V. Irvin, 169 Pa. St. 529, 546. 8. Underwood v. Simonds, 12 Mete. (Mass.) 275. 9. Millett V. Marston, 62 Me. 477. 10. Rose V. Lanyon Zinc Co., 68 Kan. 126, 74 Pac. R. 625 ; Crane v. Bailey, 126 Mich. 323, 85 N. W. R. 874; Pike V. Mcintosh, 167 Mass. 309, 45 N. E. R. 749; Boyd v. 436 THE LAW OF EVIDENCE According to some decisions the parol evi- dence rule is based upon the principle that a writing is evidence of a higher order than mere oral testimony.^^ In other words, that the rule forms part of the adjective law of evidence ex- clusively. According to the better view, how- ever, the rule, in a large measure, is part of' the substantive law. "Parol proof is excluded, not because it is lacking in evidentiary value, but because the law for some substantive reason de- clares that what is sought to be proved by it (being outside the writing by which the parties have undertaken to be bound) shall not be shown. "^^ § 7. Application of the rule. — The parol evi- dence rule is an exceedingly flexible one, and is subject to a multitude of exceptions and limita- tions.^^ Moreover, the decisions upon some phases of it are in hopeless conflict. "To recon- cile the adjudicated cases'with each other or with the rule itself, would require great ingenuity, and perhaps be an impossible undertaking."^* Paul, 12s Mo. 9, 28 S. W. R. 171; Am. Assoc, v. Innis, 109 Ky. S9S, 60 S. W. R. 388; Bulkley v. Devine, 127 111. 406, 20 N. E. R. 16, 3 L. R. A. 330; McEnery-v. Mc- Bnery, 110 la. 718, 80 N. W. R. 1071 ; Ui'hkin v. Mathe^ivs, 172 N. Y. 154, 64 N.'E. R. 792. 11. Wilkinson v. Wilkinson, 17 N. C. 376; Ratcliflfe v. Alli- son, 3 Rand. (Va.) 537. 12. Pitcairn v. Philip Hiss Co., 125 Fed. R. 110, 113, 61 C. C. A. 657. 13. Bassett v. Glover, 31 Mo. App.. ISO. 14. Kennedy v. Erie, etc.. Plank Road Co., 25 Pa. St. 224, 225'. THE PAROL EVIDENCE RULE 437 The rule is applicable to judicial records ;^^ judicial proceedings in general ;^^ the docket of a justice of the peace ;" the record of a probate court ;^^ the record of a police court ;^® an as- signment of dower f° an order of a court f'^ a record of an execution sale;^^ a drawing of a jyj.y.23 ^Yie record of a recognizance;^* a stipula- tion pertaining to a particular suit;^^ recita:ls showing jurisdiction of a court of record;^® legis- 15. In re Macke, 31 Kan. 54, 1 Pac. R. 785 ; Pennell v. Curd, 96 Me. 392, 52 Atl. R. 801 ; Rubel v. Title Guar., etc., Co., 199 111. 110, 64 N. E. R. 1033; State v. Miller, 95 la. 368, 64 N. W. R. 288; Bent v. Stone, 184 Mass. 92, 68 N. E. R; 46. 16. Stuart V. Morrison, 67 Me. 549 (writ) ; Taylor v. Talman, 2 Root (Conn.) 291 (verdict) ; Mandeville v. Bracy, 31 Miss. 460 (judgment) ; Morris v. Hubbard, 10 S. D. 259, 72 N. W. R. 894 (execution) ; Wxight-Blodgett Co. v. Elms, 106 La. 150, 30 So. R. 311 (answer). 17. May V. Hammond, 146 Mass. 439, 15 N. E. R. 925; Sut- ton V. Cole, 155 Mo. 206, 55 S. W. R. 1052. 18. Hankinson v. Charlotte, etc., Ry. Co., 41 S. C. 1, 19 S. E. R. 206 (letters of admin.). 19. Smelzer v. Ijockhart, 97 Ind. 315. 20. Young V. Gregory, 46 Me. 475; Fuller, v. Ruse, 153 Mass. 46, 26 N. E. R. 410. 21. Boynton v. People, 155 111. 66, 39 N. E. R. 622. 22. Collins V. Ball, 82 Tex. 259, 17 W. R. 614, 27 Am. St. Rep. 877; Pritchard v. Madren, 31 Kan. 38, 2 Pac. R. 691. 23. State v. Allen, 1 Ala. 442. 24. Watts V. Stevenson, 169 Mass. 61, 47 N. E. R. 447; Mc- Micken v. Com., 58 Pa., St. 213. 25. State V. Lefaivre, S3 Mo. 470. 26. Robinson v. Ferguson, 78 111. 538; Freeinan v. Thompson, S3 Mo. 183. •438 THE LAW OF EVIDENCE lative recoi'ds f printed laws published by au- thority f^ county records ;^^ records of a school district;^" records of assessment and collection of taxes f^ military records f^ records of a land ofifice;^^ records of official sales of land required by law to be kept;^* a charter party ;^* a bond;^® a warranty ;" a will f^ a deed f^ a contract,*" etc. 27. In re Howard County, IS Kan. 194; Wise v. Bigger,- 79 Va. 269. 28. Annapolis v. Harwood, 32 Md. 471, 3 Am. Rep. 161. 29. State v. Sinunoiis, 40 La. Ann. 758, S So. 29; Carroll ■ County V. O'Connor, 137 Ind. 622, 35 N. E. R. 1006, 37 N. E. R. 16. 30. Cowley v. Harrisville Tp. Sdi. Dist., 130 Mich. 634, 90 N. W. R. 680. 31. Blanchard v. Powers, 42 Mich. 619, 4 N. W. R. 542; Gaither v. Green, 40 La. Ann. 362, 4 So. 210. Contra, State V. Aldridge, 66 Ohio St. 598, 64 N. E. R. 562. 32. Fichburg v. Lunenburg, 102 Mass. 358 (discharge of sol- dier). 33. Branson v. Wirth, 17 Wall. (U. S.) 32, 21 L. ed.-566. 34. Bays v. Txulson, 25 Oreg. 109, 35 Pac. R. 26. 35. Johnson v. D. H. Bibb Lumber Co., 140 ^Cal. 95, 73 Pac. R. 730; Pitkin v. Brainerd, 5 Corni. 451, 13 Am. Dec. 79. 36. Lane v. Price, 5 Mo. 10-1; Gray v. Phillips, 88 Ga. 199, 14 S. E. R. 205; Carroll County v. Ruggles, 69 la. 269, 28 N. W, R. 590; 58 Am. Rep. 223. 37. McQuaid v. Ross, 11 Wis. 470, 40 N. W. R. 892 ; Bradford V. Neil, 46 Minn. 347, 49 N. W. R. 193. 38. Decker v. Decker, 121 111. 341, 12 N. E. R. 750; Willard V. Darrah, 168 Mo. 660. 39. Hogan v. Wallace, 166 111. 328; Blow v. Vaughn, 105 N. C. 198. 40. Merrigan v. Hall, 175 Mass. 508, 56 N. E. R. 605 ; Rose V. Lanyon Zinc Co., 68 Kan. 126, 74 Pac. R. 625; Ellis v. THE PAROL EVIDENCE RULE 439 § 8. Prior and contemporaneous agreements merge in the document. — Where the contracting parties reduce their final agreement to writing the law presumes that all prior and contempor- aneous oral negotiations become merged in the document. "Where parties reduce their con- tract to writing, the law presumes that the whole terms and conditions of the agreement are fully incorporated in, and become a part of, the writ- ten instrument."" "The rule is, where a con- tract is reduced to writing, that the writing af- fords the only evidence of the terms and condi- tions of the contract. All antecedent and con- temporaneous verbal agreements are merged in the written contract."*^ § 9. The rule applicable to the legal import of a document. — The rule is not confined to the, ex- press terms of a document. It is applicable also to its legal import.*^ Thus, where a written con- tract for the payment of money is silent as to the time of payment, and by a rvile of law it is payable on demand, parol testimony is inadmis- sible to prove an oral agreement to pay it at a Conrad Brew. Co., 207 111. 291, 69 N. E. R. 808; Williams V. Robinson, 73 Me. 186, 40 Am. Rep. 352. 41. ConweM v. S. & N. W. Ry. Co., 81 111. 232, 234. 42. Lane v. S'harpe, 3 Scam. (111.) 566, 572. See also, U. N. Bank of Chicaso v. L. N. A. & C. Ry. Co., 145 111. 208, 221 ; Graham v. Sadkr, 165 111. 95, 98". 43. Cliver v. Heil, 95 Wis. 364, 70 N. W. R. 346; Richards v. McKenney, 43 Me. 177; Brown v. Hitchcock, 28 Vt. 452; Fawkner v. Lew Smith Wall Paper Co., 88 la. 169, 49 N. W. R. 1003, 55 N. W. R. 200„ 45 Am. St. Rep. 230. 440 THE LAW OF EVIDENCE different time.** Where a written contract is silent as to the time of performance the law im- plies that it is to be performed within a reason- able time, depending upon the circumstances of the case, and parol testimony is inadmissible to show an oral agreement to perform it at a dif- ferent time.*^ Where a written contract of em- ployment is silent as to compensation a reason- able amount is implied, and parol testimony of an oral agreement fixing a different amount is inadmissible.*® Where a written contract obli- gates a person in general terms to pay a sum of money, parol testimony is inadmissible to prove an oral agreement to pay it out of a particular fund.*'' Where a written contract of employment is silent as to the length of the term, it may be terminated at any time by either party, and parol testimony is inadmissible to'prove an oral agree- ment to the contrary.*^ Again, where two mort- gages, secure installments of the same debt, and by legal import priority is given to the in- stallment first due in applying the proceeds from a sale of the property under forecloseure pro- 44. Thompson v. Phekn, 22 'N. H, 339; Warren v. Wheeler, 8 Mete. (Mass.) 97. 45. Driver v. Ford, 90 111. S9S; Self v. Kiiig, 28 Tex. 552; Boehm v. Lies, 60 N. Y. 436 ; Harrosw Spring Co. v. Whip- ple Harrow Co., 90 Mich. 147, 30 Am. St. Rep. 421. 46. Williams v. Kansas City Sub. Belt Ry. Co., 85 Mo. App. 103. 47. Murchie v. Peck, 160 111. 175; Mumford v. Tolman, 157 111. 258. 48. Irish V. Dean, 39 Wis.-S62. THE PAROL EVIDENCE RULE 44I ceedjngs,. parol testimony is not admissible to prove an oral agreement that the proceeds should be applied differently.*® § 10. Application of the rule to various classes of contracts. — The parol evidence rule is "applied to contracts much more frequently than to any other class of documents.^" The rule does not apply, however, to incomplete written con- tracts."^ Thus, it has been held that it does not apply to a mere written acknowledgment of a sum due f^ to an indorsement on an envelope, containing securities as collateral, where it states the names of the borrower and the lender, the list of securities, the amount of the loan, the time and rate, of interest ;^^ to a receipt for part pay- ment of the agreed price of certain work;^* to a check for the amount of a bank deposit ;^^ to a memorandum stating "Bought of G. Pink, a horse for the sum of £7 2s. 6d." and signed "G. 49. Isett V. Dean, 39 Wis. 562. f' 50. Bullard v. Br«wer, 118 Ga. 918, 45 S. E. R. 711; Rose v. Lanyon Zinc Co., 68 Kan. 126, 74 Pac. R. 625 ; Merrigan V. Hall, 175 Mass. 508, 56 N. E. R. 605; Boyd v. Paul, 125 Mo. 9. 28 S. W. R. 171 ; Tripp v. Smith, 168 N. Y. 655, 61 N. E. R. 1135; Irwin, v. Irwin, 169 Pa. St. .529, 32 Atl. R. 445, 29 L. R. A, 292; Watson v. Miller, 82 Tex. 279, 17 S. W. R. 1053; DeWittv. Berry, 134 U. S. 306. 51. Holt V. Pie, 120 Pa. St. 425, 14 Atl. R. 389; Smith v. Coleman, 77 Wis. 343, 46 N. W. R. 664. 52. Alexander v. Thompson, 42 Minn. 498, 44 N. W. R. 534, 53. Union Trust Co. v. Whitorn, 97 N. Y. 172. 54. Flood V. Joiner, 96 Ind. 459. §5. Rislevyv. Phenix Bank, 83 N. Y. 318, 38 Am. Rep. 421. 442 THE LAW OF EVIDENCE Pink ;"^* to an indorsement and delivery of a bill of lading;^'' or to a writing which states only part of an entire Verbal contract.^* The rule is applicable to a bill of lading;^* to a written agreement of guaranty or suretyship ;*" to a contract of indemnity;*^ to an application for insurance;®* to a policy of insurance;®' to a contract of partnership;®* to a contract of em- ployment f^ to a contract of sale ;®® to a contract 56. Allen v. Pink, 4 M. & W. 140. 57. Security Bank v. Luttgen, 29 Minn. 363, 13 N. W. R. 151. 58. Ohapib et al. v. D'obson, 78 N. Y. 74; Grierson v. Mason, 60 N. Y. 394; Potter v. Hopkins, 25 Wend. (N. Y.) 417; Batterman v. Pierce, 3 Hill (N. Y.) 171 ; Jeffery v. Wal- ton, 1 Stark. Rep. 385.' 59. Cohen v. Jacoboice, 101 Mich. 409, 59 N. W. R. 665; Tallahassee Falls Mfg. Co. v. Western Ry. Co., 117 Ala. 520, 23 So. R. 139, 67 Am. St. Rep. 179. 60. Trentman v. Hetcher, 100 Ind. 105; Boston, etc.. Glass Co. V. Moore, 119 Mass. 435; Squier v. Evans, 127 Mo. 514, 30 S. W. R. 143; Adams v. Wallace, 119 Cal. 67, 51 Pac. R. 14. 61. Jones v. Woloot, 2 Allen (Mass.) 247; Woodcock v. Bos- tic, 128 N. C. 243, 38 S. E. R. 881. 62. Dow V. Whetten, 8 Wend. (N. Y.) 160. 63. Pierce v. Charter Oak L. Ins. Co., 138 Mass. 151; Union Cent. L. Ins. Co v. Hook, 62 Ohio St. 256, 56 N. E. R. 906; Hartford F. Ins. Co. v. Webster, 69 111. 392; Union Mirt. L. Ins. Co. v. Mowry, 96 U. S. 544. 64. Mioh. Sav. Bank v. Butler, 98 Mich. 381, 57 N. W. R. 253; Taft v. Schwamb, 80 111. 289; Miller v. Butterfield, 79 Cal. 62, 21 Pac. R. 543. 65. Alvord v. Cook, 174 Mass. 120, 54 N. E. R. 499 (broker) Stowell V. Greenwich Ins. Co., 163 N. Y. 298, 57 N. E. R. 480 (insur. agent) ; Violette v. Rice, 173 Mass. 82, S3 N. E. R. 144 (actress); Drennan v. Satterfield, 119 Ala. 84, THE PAROL EVIDENCE RULE 443 of subscription f^ to an acceptance of a draft f^ to a promissory iiote;"" to an indorsement of a notfe in blank ;'''' to a certificate of deposit ;''^ to 24 So. R. 723 ; Dickson v. Hartman Mfg! Co., 179 Pa. St. 343, 36 Atl. R. 246 (no time stated). 66. Bass Dry Goods Co. v. Granite City Mfg. Co., 119 Ga. 124, 45 S. E. R. 980; Hotdifciss v. Higgins, 52 Conn. 205, > 52 Am. Rep. 582; Smi*h v. Barber, 153 Ind. 322, S3 N. E. R. 1014;Tripp v. Smith, 180 Mass. 122, n61 N. E. R. 804; Welch's Succession, 111 La. 801, 35 So. R. 913, 64 L. R. A. 823; Dady'v. Rourke, 172 N. Y. 447, 65 N. E. R. 273 (description of prop.) ; Ohlert v. Alderscm, 86 Wis. 433, 57 N. W. R. (quantity of land) ; Schreiber v. Butler, 84 Ind. 576 (quantity of ice) ; McLeod v. Hunt, 128 Mich. 124, 87 N. W. R. 101 (price) ; Hunt v. Gray, 76 la. 268, 41 N. W. R. 14 (time and mode of payment) ; Long v. MiHerton Iron Co., 101 N. Y. 638, 4 N. E. R. 735 (reser- vation) ; Ehrsam v. Brown, 64 Kan. 466, 67 Pac. R. 867 (warranty of thing sold) ; Ferguson v. Arthur, 128 Mich. 297, 87 N. W. R. 259 (time essence of contract) ; Lawrence V. McGuire, 21 Kan. 552 (time of delivery). 67. Montpelier M. E. Church v. Town, 49 Vt. 29 (mode of payment — in work) ; Burch v. Augusta, etc., Ry. Co., 80 Ga. 296, 4 S. E. R. 850 (written promise to donate right of way and oral agreement as to location of railroad) ; Sbillings v. Timmins, 152 Mass. 147, 25 N. E. R. 50; Low v. Studabaker, 110 Ind. 57,; 10 N. E. R. 301 (oral condi- tion) ; Marshall Foundry Co. v. Killian, 99 N. C. 501, 6 S. E. R. 680, 6 Am. St. Rep. 539. 68. Davis v. Randall, 115 Mass. 547, 15 Am. Rep. 146 (oral agreement that acceptor should not be required to pay it). 69. Phillips V. Jarvis, 19 Wis. 204 (to be considered a mere receipt). 70. Martin v. Cole, 104 U. S. 30 (to be witheart Tecourse) . 71. Reed v. Bank of Attica, 124 N. Y. ^71 (that it should draw interest). 444 THE LAW OF EVIDENCE a contract fixing no time of payment ;'^^ to a con- tract of sale;''* to an indemnity bond/* etc. § II. Application of the rule to deeds, mort- gages and leases. — The parol evidence rule has been frequently applied to deeds, mortgages and leases as regards the descriptions of the parties, the description of the subject matter, the nature aijd extent of the estate demised, and the cove- nants, reservations and limitations therein con- tained. Thus, parol testimony has been held in- admissible to show that a person other than the one described in the deed as grantee was the person intended i''^' that the premises demised were different from those described in the docu- ment ;''* that the quantity of land demised was more or less than that described in the instru- 72. Ford v. Yates, 2 Man. & 549 (to show credit was given). 73. Allen v. Bryson, 67 la. 591 (to show it was a contract of bailment) ; Baker v. Higgins, 21 N. Y. 397 (to show a delivery in parcels at different times instead of in gross as stated in the writing) ; Snyder v. Koons, 20 Ind. 389 (to show that seller was to load the buyer the purchase price) ; Osborn v. Heiidrrckson, 7 Cal. 282 (to show that articles not stated in writing were included) ; Daly v. Kimball, 67 la. 132 (to show that an^ oral condition was to apply to the writing). 74. Cowel V. Anderson, 33 Minn. '374 (to show that the obli- gor was not to be called upon to meet the obligation). 75. Pitts V. Brown, 49 Vt. 86, 24 Am. Rep. 114; Jackson v. Hart, 12 Johns. (N. Y.) 77, 7 Am. Dec. 280. 76. Stowell V. Buswell, 135 Mass. 340; Weill v. Lucerne Min. Co., 11 Nev. 200; Elliott v. Weed, 44 Conn. 19; Porter v. Reid, 81 Ind. 569. THE PAROL EVIDENCE RULE 445 mentf that a grant of a i^ight of way was dif- ferent from that described in the deed;'^* that the land conveyed was in a different location from that described in the deed f^ that a tax deed was of no effect because the manner of listing and assessing the property as described in the deed was different from that required by law,^" or be- cause the land was sold for taxes of a different year from that described in the deed;^"- that the word "heirs" .in the deed was intended by the parties to the instrument to mean "children" f^ that a plan expressly referred to in the deed did not correctly describe the premises conveyed;^* that the boundaries of the land conveyed were different from those expressed in the deed;** that a particular tract of land, not alluded to in the deed, was to be included in the grant, of that a particular tract described in the deed was to be excluded from the grant ;*^ that the grantee was 77. Turner v. Rives, 75 Ga. 606; Bladen v. Wells, 30 Md. 577; Child v. Wells, 13 Pick. (Mass.) 121. 78. Comstock v. Van Deusen, 5 Pick. (Mass.) 163. 79. Elofrsori v. Lindsay, 90 -Wis. 203, 63 N. W. R. 89. 80. Easton v. Perry, 37 la. 681. 81. Bower v. Chess, etc., Co., 83 Miss. 218, 35 So. R. 444. .82. Pritchard v. James, 93 Ky. 306, 20 S. W. R. 216, 14 Ky. L. Rep. 243. 83. Purchase v. Tiffany, 1 Me. 219, 10 Am. Dec. 60; Ren- wick V. Reniwi'ck, 9 Rich. (S. C.) 50. 84. Fuller v. Weaver, 175 Pa. St. 182, 34 Atl. R. 634; Sleeper V. Laconia, 60 N. H. 201, 49 Am. Rep. 311; Drew v. Swift, 46 N. Y.' 204. 85. Adams v. Marshall, 138 Mass. 228, 52 Am. Rep. 271; 446 THE LAW OF EVIDENCE subsequently to reconvey the land;*® that a line described in the deed as a straight line was in- tended to mean a curved line^'^ that the grantees of a tract of land, who were' described in the deed as husband and wife, took a tenacy in common and not a tenancy by the entirety;** that a quit claim deed was intended to be a warranty deed ;*^, that the grantor was to pay certain taxes ex- pressly excepted in the deed from an express warranty f that a party to the deed orally cove- nanted to do a certain thing not expressly de- scribed in the deed, or not to do a certain thing which he expressly covenanted in the deed to do;"^ that the grantor was to retain possession of the land until the purchase price was paid,®^ or for life,®^ or for a definite time,®* or until the next crop was harvested,®* or uptil the youngest Thayer v. Finton, 108 N. Y. 397; Griffin v. Hall, US Ala. . 482, 22 So. R. 162. 86. Bonhiaim v. Craig, 80 N. C. 224. 87. Pitts V. Brown, 49 Vt. 86, 24 Am. Rep. 114; Allen v. Kingsbury, 16 Pick. (Mass.) 235. 88. Jacobs v. Miller, SO Mioh. 119, 15 N. W. R. 42. 89. Cartier v. DouvHle, 98 Mich. 22, 56 N. W. R. 1045. 90. MacLeod v. Skiles, 81 Mo. 595, 51 Am. Rep. 2S4. 91. Garrett v. Weinberg, 54 S. C. 127, 31 S. E. R. 341, 34 S. E. R. 70; Powers v. . Spaulding, 96 Wis. 487, 71 N. W. R. 891 ; Miller v. Desverges, 75 Ga. 407. 92. Omaha, etc.. Smelting, etc., Co. v. Tabor, 13 Colo. 41, 21 Pac. R. 925, 16 Am. St. Rep. 185, 5 L. R. A. 236. 93. Woodward v. Foster, 64 Hun (N. Y.) 147. 94. Carr v. Hays, 110 Ind. 408, 11 N. E. R. 25. 95. Melton v. Watkins, 24 Ala. 433, 60 Am. Dec. 481. But see,, Willis v. Hulburt, 117 Mass. ISl. THE PAROL EVIDENCE RULE 447 grantee. became of age;®® that the passing of the title to the land was to take effect on a future date;®'' that certain growing crops were reserved to the grantor;®^ that there was an oral reser- vation of rent;®® that the grantee would pay an assessment for improvements;^®" that certain known incumbrances were to^ be excluded from the operation of a general covenant against in^ cumbrances ;^ that a reservation of "standing wood" was intended to mean wood suitable for fuel f that certain buildings on the land convey- ed,^ or certain other fixtures,* or. plants, trees or shrubbery,^ were orally reserved by the graritor ; that in case the lessee purchased the demised 96. Ford V. Bone, 32 Tex. Civ. App. SSO, 75 S. W. R. 3S3. 97. Wallace v. Berdell, 97 N. Y. 13; Wright v. Graves, 80 Ala. 416. 98. Brown v. Thurston, 56 Me. 126, 96 Am. Dec. 438; Mc- Ilvaine v. Harris, 20 Mo. 457, 64 Am. Dec. 196. (probably weight of authority). Contra. Harvey v. Million, 67 Irid> 90; Flynt v. Conrad, 61 N. C. 190, 93 Am. Dec. 588; Sim- anek v. Nemetz, 120 Wis. 42, 97 N. W. R. 508; Adams v. Watkins, 103 Mioh. 431, 61 N. W. R. 774. ' 99. Winn v. Murehead, 52 la. 64. 100. Desmond v. McNamara, 107 Wis. 126, 82 N. W. R. 701 ; Flynn v. Bourneof, 143 Mass. 277, 58 Am. Rep. 135. 1. Bever v. North, 107 Ind. 544; Johnson v. Walter, 60 la. 315. 2. Strout v. Harper, 72 Me. 270. 3. Smith V. Odom, 63 Ga: 499. 4. Bond V. Coke, 71 N. C. 97; Noble v. Bosworth, 19 Pick.: (Mass.) 314. 5. Smith V. Price, 39 111. 28, 89 Am. Dec. 284; Backenstoss V. Stabler, 33 Pa. St. 25J, 75 Am. Dec. 592. " 448 THE LAW OF EVIDENCE premises the rent was to be applied as part of the purchase price f that the lessor orally agreed that the premises might be used for purposes other than those stated in the lease f that the lessor orally agreed to furnish water, heat, etc,^ or certain furniture;^ that the tenant might re- move, after the expiration of his term, certain fixtures erected by him on the premises;^" ^hat it was orally agreed that certain repairs would be made ;^^ that the land would be ditched,^^ that certain railroad tracks would be laid to the premises demised, ^^ or that water and gas ac- comiliodations would be supplied;^* that the. lessee might siirrendei" the premises upon the happen- ing of a certain contingency, or at his pleasure ;^^ that the lease would expire upon a sale, of the premises demised;^® that the lessor orally agteed to accept part of the rent in board ;^'' that the 6. Brann v. Wis. Rendering Co., 92 Wis. 245, 66 N. W. R. 196. 7. Sientes v. Odier, 17 La. Ann. 153. 8. Cooney v. Murray, 45 111. App. 463. 9. Wilson V. Deen, 74 N. Y. 531. 10. Stephens v. Ely, 162 N. Y. 79, 56 N. E. R. 499. 11. York V. .Steward, 21 Mont. 515, ,55 Pac^R. 29, 43 L. R. A. 125; Kline v. McLain, 33 W. Va. 32, 10 S. E. R. 11, 5 L., R. A. 400. 12. Diven v. Johnson, 117 Ind. 512, 20 N. E. R. 428, 3 L. R. A. 308. 13. Tracy v. Union Iron Works, 104 Mo. 193, 16 S. W. R. 203. 14. McLean v. Nicol, 43 Minn. 169, 45 N. W. R. IS. 15. HukiU V. Guflfey, 37 W. Va. 425, 16 S. E. R. 544. , 16. Randolph v. Helps, 9 Colo. 29, 10 Pac. R. 245. 17. StuU V. Thompson, 154 Pa. St. 43, 25 Atl. R. 890. THE PAROL EVIDENCE RULE 449 premises were to be occupied and used by the lessee himself, where the lease was silent upon this point ;^^ that the liability of an indorser of a note was to be different from the ordinary lia- bility of an indorser;^®' that a conveyance of lands by a father to his child was intended to operate as a resulting trust to himself;^" that an absolute conveyance was intended as a condi- tional one;^^ that the lessee was not to sublet the premises for use as a saloon, where the lease expressly authorized him to sublet for "business purposes ;"^^ that a mortgage was intended as an absolute conveyance,^^ or a conditional sale,^* or an assignment;^' that lands purchased by the husband, where his wife was made the grantee, were held by her in trust for him f^ that the written subscription of a stockholder was condi- tional,^^ etc. On the other hand, there are many cases in which the courts have held that the parol evidence rule does not apply. 18. Nave v. Berry, 22 Ala. 382. 19. Doolittle V. Perry, 20 Kan. 230; Charles v. Denio, 42 Wis. 56. 20. Annis v. Wilson, IS Colo. 236. 21. Thomas v. Scutt, 127 N. Y. 133; Peagler v. Stabler, 91 Ala. 308. 22. Harrison v. Howe, 109 Mich. 476, 67 N. W. R. 527. 23. Goon Can v. Richardson, ' 16 Wash. 373, 47 Pac. R. 762. 24. W'ing V. Cooper, 37 Vt. 169. 25; Dunham v. McNatt, 15 Tex. Civ. App. 552, 39 S. W. R, 1016. 26. Montgomery v. Craig, 128 Ind. 48. 27. Masonic Temple Assoc, v. Channel, 43 Minn. 353. 450 THE LAW OF EVIDENCE § 12. Exceptions and limitations. — The parol evidence rule has many exceptions and limita- tions. As to some of them the decisions are in hopeless conflict, but as to most of them they are harmonious. The following' sections of this chapter deal almost exclusively with these ex- ceptions and limitations. § 13. Incomplete writings. — As stated in §9, the parol evidence rule does not apply to incom- plete documents. It has been said that a con- tract cannot rest partly in writing and partly in parol.^* While this statement is somewhat vague, what probably is meant is .that where a contract is partly oral and partly in writing the whole is treated as parol. "Where a contract in writing shows upon its face that it is not the whole con- tract between the parties, and does not purport to be a complete agreement, parol evidence is admissible to -show what was the whole contract, and the same then becomes all parol. "^® As to the evidence allowable in determining whether a given writing is complete or not the courts are not harmonious. Some hold that it is confined to the writing itself. "The only safe criterion of the completeness of a written con- tract as the full expression of the terms of the 28. Hartford F. Ins. Co. v. Webster, 69 111. 392, 393; Long-. fellow V. Moore, 102 111. 289, 294. 29. Selig V. Rehfuss, 195 Pa. St. 200, 206. See also, Schwab V. Ginkinger, 181 Pa, St. 8, 14; Ebert v. Arends, 190 111. 221. THE PAROL EVIDENCE RULE 45 I parties' agreement is the contract itself."^" Others, hold that testimony of the surrounding circumstances is also admissible. "While the writing itself is the only criterion by which the intention of the parties is to be ascertained, yet it is not necessary that the incompleteness of the writing should appear on its face from a mere inspection of it, for it is to be construed in the light of its subject-matter and the purposes for which it was executed."^^ The latter view is in accord with the general rule.^* To prove the oral parts of incomplete written contracts parol evidence has been held admissi- ble to show the compensation orally agreed to be paid for performing certain services;** to show the location of timber agreed to be cut;** to shoW that a sale of goods was by sample;*^ to show the time when goods were* to be deliv- ered;*® to show the oral part of the contract that the landlord was to receive less rent for the premises during the time they were undergoing 30. Naumberg v. Young, 44 N. J. L. 331. See also, Telluride Power Travs. Co. v. Crane Co., 208 111. 218, 10 N. E. R. 319; Union Selling Co. v. Jones, 128 Fed. R. 672. 31. Potter V. Eastern, 82 Minn. 247. 32. Peabody v. Bement, 19 Mich. 47; Burton v. Morrow, 133 Ind. 221 ; Ebert v. Arends, supra; Fawkner v. Smith Wall Paper Co., 88 la. 169; Thomas v. Scutt, 127 N. Y. 133, 138. 33. Sayre v. Wilson, 86 Ala. ISl. 34. Pitmey v. Thompson, 3 la. 74. 35. RoutUdge v. Worthington Co., 119 N. Y. 592; Smith v. Coleman, 11 Wis. 343. , 452 THE LAW OF EVIDENCE repairs ;^'^ to show the amount of goods agreed to be dehvered;^* to show an oral acceptance of an ofifer in writing,*^ etc. Where the contract is partly oral and partly in writing the parol evidence of the oral part must be consistent with the written part.*" Where the writing states the terms and condi- tions of the contract as regards only one of the parties to it parol exidence is admissible to show the oral terms and conditions as regards the other party.*^ Where the writing does not show on its face that it was intended to express the whole contract parol evidence is admissible to show the oral part'.*^ As said by Mr. Stephen, parol evidence is admissible to show "the exis- tence of any separate, oral agreement as to any matter on which a document is sjlent, and which is not inconsistent with its terms, if, from, the circumstances of the case, the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them."*''' 36. Johnson v. McRary, 5 Jones (N. C.) 369. 37. Condit V. Condrey, 123 N. Y. 463 ; Roberts .v. Bonaparte, 73 Md. 191. 38. Potter v. Hopkins, 25 Wend. (N. Y.) 417; Norton v. Woodruff, 2 N. Y. 1S3. 39. Pacific Works v. Newhall, 34 Conn. 67. 40. Radigan v. Johnson, 174 Mass. 68; Gardner v. Mathews, 81 Mo. 627; Horn v. Hanson, 56 Minn. 46. 41. Dana v. Taylor, ISO Mass. 25; Smith v. Coleman, 11 Wis. 343. -f?* 42. Chapin et al. v. Dobson, 78 N. Y. 74 (a leading case) ; ■' Allen V. Pink, 4 M: & W. 140. THE PAROL EVIDENCE RULE 453 § 14. Collateral agreements. — The parol evi- dence rule does not apply to independent collat- eral contracts.** Thus, it has been held that parol evidence is admissible, in the case of a written contract for the hire of a horse, to prove an oral agreement that accidents occasioned by the ,horse shying should be at the risk of the hirer ;*^ to show an oral agreement that an indebtedness, evidenced by a writing, should be paid or dis- charged in a particular way;*^ to show, in an ac- tion on a promissory note given for wood on the plaintifif's land, an oral agreement, made at the same time,- that if anything happened to the wood thru his means or by setting fire to his fallow, he would bear the loss (the fallow was burned and also the wood) ;*^ to show, in an ac- tion for breach, an oral agreement by the lessor (deft.) that he would kill off the rabbits on the lands demised if the lessee would renew the lease for another term f^ to show, in an actibn 43. Steph. Dig. of Evid., art. 90. See also, Hppe v. Balen, 58 N. Y. 380. 44. Snowden v. Guion, 101 N. Y. 458, 462; McDonald v. Danalv, 196 111. 133, 63 N. E. R. 648; Drake v. Allen, 179 Mass. 197, 60 N. E. R. 477; Mann v. Taylor, 78 la. 355, 43 N. W. R. 220 ; Saxton v. Pells, 98 Mich. 340, 57 N. W. R. 169; Brown v. Beecher, 120 Pa. St. 590, IS Atl. R. 608; Stokes v. Polky, 164 N. Y. 266, 58 N. E. R. 133; Louisrville, etc., Ry. Co. v. Duncan, 137 Ala. 446, 34 So. 988. 45. Jeffry v. Walton, 1 Stark. Rep. 385. 46.- Honeycut v. Strother, 2 Ala. 135. 47. Batterman v. Pierce, 3 Hill (N. Y.) 171. 48. Morgan v. Griffith, L. R. 6 Exch. 70. 454 THE LAW OF EVIDENCE on a. promissory note, an oral agreement by an indorser, bet'yveen him and the indorsee, to waive demand and notice;** to show, in a written con- tract for the sale of lands, an oral agreement as to the mode of paying for the land;^" to show, in an action by the grantee of a lot against the grantor, an oral promise by the grantor to grade and construct a street so as to connect with a certain public street already built and open, and also to cause the city water to be put into the street by a certain specified time;^^ to show, in an action against the grantor, an oral agreement by him to pay for the filling of a lot sold by him to the grantee ;^^ to show, in an action for dam- ages for breach of a contract, an oral agreement by the vendor of a stock of goods not to engage in competition with the vendee f^ to show, in an action against a manufacturer of goods, who had accepted a written order, with stipulations as to quality, price, etc., an oral agreement to adver- tise the goods f* to show, in an action on a note, an oral agreement between all parties to the note that demand of payment should be made at 49. Sanborn ^v. Southerd, 25 Me. 409, 43 Am. Dec. 288. 50. Paul V. Owings, 32 Md. 402; Sivers v. Sivers, 97 Cal. S18. 51. Durkin v. Cobleigh, 156 Mass. 108. 52. McCormick v. Cheeyers, 124 Mass. 262. 53. Pierce v. Woodward, 6 Pick. (Mass.) 206; Fusting v. Sullivan, 41 Md. 162. Contra. Costello v. Eddy, 128 N. Y. 650; Smith v. Gibbs, 44 N. H. 335. 54. Ay«r v. Manuf. Co., 147 Mass. 46, 16 N. E. R. 754. See also, Willis v. Hulbert, 117 Mass. 151; Renncll v.' Kim- ball, 5 Allen (Mass.) 356. THE PAROL EVIDENCE RULE 455 a particular bank;^^ to show an oral agreement, by the grantor of a tract of land, to pay for build- ing a sewer in the street adjoining the land sold;^^ to show an oral agreement by a landlord to make certain repairs before the beginning of the term f to show an oral agreement relating to transportation by a common carrier notwith- standing the giving of a printed ticket;^* to show, as between an indorser and his immediate indorsee, an oral agreement to waive demand and notice of non-payment;^® to show an oral iinderstanding that a promissory note in form, executed by a datighter and made payable to her father was intended only as a mere memor- andum or receipt of an advancement;*" to show an oral agreement that certain notes were not to be paid until sufficient profits accumulated from a corporate business to meet them ;*^ to show an oral agreement betw^een two indorsers of a note as to the mode of adjusting their losses * 55. Brent's Exec. v. Bank of the Metropolis, 1 Pet. (U. S.) 89. 56. Carr v. Dooley, 119 Mass. 294. See also, Graffam v. Pierce, 143 Mass. 386, 9 N. E. R. 819; Cole v. Hadley, 162 Mass. 579. 57. Clenighan v. McFarland, 34 N. Y. State Rep. 624; Mann V. Nunn, 43 L. J. (C. P.) 241. 58. Van Buskirk v. Roberts, 31 N. Y. 661. 59. Dye v. Scott, 35 Ohio St. 194, 35 Am. Rep. 604. 60. Brook v. Latimef, 44 Kan. 431. 61. Carraher v. Mulligan, 54 Hun (N. Y.) 638, 28 N. Y. State Rep. 439. ' 456 THE LAW OF EVIDENCE in case any arose ;®^ to show an oral agreement between the payee of a note and the indiorsers that the latter were not to be personally liable f^ to show, in an action by a lessee against the les- sor for damages for breach of a covenant to re- pair, an oral understanding that the lessee in- tended to use the premises for a particular pur- pose, which purpose caused the damages to be greater than they would have, been under ordin- ary circumstances;®* to show, as between the immediate parties, an oral understanding that an irregular indorser was to be liable as a guarantor,®* a surety or a joint maker,®® or as an indorser;®'' to show, as between the immediate parties, an oral agreement that the mortgagor of certain chattels might keep possession of them;®^ to show an oral agreement which induced a party to a written contract tq make it;®® to show that an indorsement was made without consideration and solely for the accommodation of the indor- see 'J" to explain an ambiguity in an indorsement, 62. Phillips V. Preston, S How. (U. S.) 278. 63. Kingsland v. Koeppe, 35 111. App. 81. 64. Dempsey v. Hertzfield, 30 Ga. 866. See also, Hopkins v. Watts, 27 Ga. 490. 65. Seymour v. Farrell, 51 Mo. 95; Worden v. Salter, 90 111. 160; Eilbert v. Finkbeiner, 68 Pa. St. 243. 66. Baker v. Robinson, 63 N. C. 191; Walz v. Alback, 37 Md. 404. 67. Truman v. Bishop, 83 la. 697. 68. PJerce v. Stevens, 30 Me. 184. 69. Ferguson v. Rafferty, 128 Pa. St. 337. 70. Wood V. Mathews, 73 Mo. 477; Breneman v. Furniss, 90 Pa. St. 186; Lovejoy v. Citizens' Bank, 23 Kan. 331. -THE PAROL EVIDENCE RULE 457 even against a purchaser before maturity for value ;''^ to show wfno was meant by the term "you", when used to represent the payee of a note;''^ or to show that the name of a principal was signed to a contract by his authorized agent;''* to show, in an action of assumpsit to recover for driving a boom of poplar logs from one place to another, at a certain price per cord, an oral agreement that the logs should be scaled by a scaler to be sent by the owner of the land upon which the logs were cut, and that this scale should control.^* On the other hand, parol testimony has been held inadmissible to show, in an action on a guaranty as to the amount, of fuel saved by using a certain kind of furnace, an oral agreement aS to the kind of test that was to be usedf^ to show, in an action against an agent on a promissory note, where he had signed only his own name as mak- er, that he intended to bind his principal and not himself ;''^® to show that a regular indorser in- tended to bind himself as guarantor, or in any capacity other than that of indorser ;'''' or to show 71. Thacher v. Stevens, 46 Conn. 561 ; Good v. Martin, 95 U. S. 95. 72. Shacklefwd v. Hooker, 54 Miss. 716. 73. Odd Fellows v.' First Nat. Bank, 42 Mioh. 463 ; First Nat. Bank v. Gay, 63 Mo. 33. 74. Gould V. Boston Excelsior Co., 91 Me. 214. 75. Hawley Down-Draft Furnace Co. v. Hooper, 90 Md. 390, 45 Atl. R. 456; Exhaust Ventilator Co. v. Chicago, M. & St. P. Ry. Co., 69 Wis. 454, 34 N. W. R. 509; Seitz v. •Machine Co., 141, U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837. 458 THE LAW OF EVIDENCE an oral agreement that the sum stipulated in writing to be paid fo.r a one-third interest in a hotel was to be paid out of the profits of the busi- ness. ^^ § 15. Same. Subject matter of oral agreement separate and distinct. — Where the subject mat- ter of the oral agreement is separate and dis- tinct from that of the written contract parol evi- dence of the oral agreement is always^ admissi- ble. Thus, where the parties to a contract nego- tiated for the sale and purchase of the fixtures and good-will of a business, and their agreement on that subject was reduced to writing, and at the same time a promise was made by the de- fendant in consideration of the plaintiff's signing the agreement, that he, the defendant, would set- tle an action then pending against the plaintiff at the suit of a third party, and he failed to do so, parol evidence was admissible, in an action for damages for the breach, to prove the oral agreement.'^* The ruling in this case w^as ex- pressly based upori the fact that the defendant's promise to settle the action against the plaintiff pertained to a subject matter wholly collateral and distinct from that of the sale and purchase. 76. Poole V. Rice, 9 W. Va. 73; Arnold v. Stackpole, 11 Mass. 27; Hypes v. Griffin, 89 111. 134. n. Finiley v. Green, gS 111. 536; Hamburger v. Miller, 48 Md. 327. ' 78. Smith V. Kemp, 92 Mich. 357. See also, Dawson v. Bris- tol, 91 Ga. 408. 79. Lindley v. Lacey, 17 C. B. (N. S.) 578. See also, Dutton V. Garrish, 9 Gush. (Mass.) 89. THE PAROL EVIDENCE RULE 459 § 16. Same. Oral warranties excluded. — While a warranty of the quality of the property sold is collateral to the sale, yet, when such an under- taking is entered into it becomes part of the con- tract by the agreement of the parties f and when the contract is reduced to writing parol evidence is inadmissible to add a contract of war- ranty to the.^erms of the contract as expressed in the writing. ^^ Thus, in an action upon a writ- ten contract for the sale of machinery parol tes- timony is inadmissible to prove a contemporan- eous oral warranty.*^ The rule is also applicable to leases. Thus, where the lessor of buildings and machinery orally warranted that the engine and boiler on the premises demised were in thor- ough repair, and would furnish all the steam and power necessary to carry on the business for which the lessees desired to use the same, in an action for damages for breach of the warranty parol evidence was held inadmissible to prove it, on the ground that all negotiations relating to the subject matter of the contract were conclud- ed by the written lease. ^^ And, in an action for the purchase price of logs sold, where the con- 80. Benj. on Sales 452. 81. Frost V. Blancha>rd, 97 Mass. ISS; Most v. Pierce, 58 la. S79; 'Bthridge v. Balin, 72 N. C. 213; Powell v. Ed- munds, 12 East, 6. 82. Harrow Spring Co. v. Whipple Harrow Co., 90 Mich. 147; McMullin v. Carson, 48 Kan. 263; Amer, Elec. Oonstr. Co. v. Consumers' Gas Co., 47 Fed. R. 43 ; Har- nor V. Groves, IS C. B. 667. 83. Naumberg v. Young, 44 N. J. L. 331. 460 THE LAW OF EVIDENCE tract of sale had been reduced to writing and the vendor had orally warranted the quality of the logs, the supreme court held that the trial court erred in admitting against objection parol testi- mony of the oral warranty. In this case Mitch- ell, J., says : "The written agreement in the case at bar, as it appears on its face, in connection with the law controlling its construction and op- eration, purports to be a complete expression of the whole agreement of the parties as to the sale and purchase of these logs, solemnly executed by both parties. . . . Parol evidence of extrinsic facts and circumstances would, if necessary, be admissible, as it always is, to apply the contract to its subject-matter, or in order to a more per- fect understanding of its language. But in that case such evidence is, used, not to contradict or vary the written instrument, but to aid, uphold, and enforce it as it stands. . . . To justify the ad- mission of a parol promise by one of the parties to a written contract, on the ground that it is collateral, the promise must relate to a subject distinct from that to which the writing relates."^* It may be well to observe that in some states the courts have held a contrary view to that stated above. But this contrary view is, erron- eous on principle and opposed by the great weight of authority. § 17. Custom and usage. — A custom is an un- 84. Thompson v. Libby, 34 Minn. 374. THE PAROL EVIDENCE RULE 46 1 written law established by long usage. ^^ It, has been defined as "unwritten law, established by- common consent and uniform practice, from time immemorial."^® "Something which has, by its universality and antiquity, acquired the force and effect of law in a particular place or country, in respect to the subject-matter to which it re- lates."^''', "It is a usage which has acquired the force of law."®® § 18. Custom and usage distinguished. — The terms "custom" and "usage" are not synony- mous. The former is a law; while the latter is only a fact. A usage may exist independently of any custom ; but a custom owes its existence to usage. Immemorial usage gives birth ■ to cus- tom. ®® A usage may continue but a short time ; while a custom, to exist at all, must be the result of immemorial usage. It is to be observed, how- ever, that it is common practice to use these two terms indiscriminately. § 19. Application of parol evidence ride to cus- tom and usage. — The parties to an agreement are presumed to have contracted in conformity 85. Nelson v. So. Pac. Co., IS Utah 325, 331, 49 Pac. R.644; Currie v. Syndicate, 104 111. App. 165, 169; Wilcox v. Wood, 9 Wend. (N. Y.) 346, 349. 86. Lindsay v. Cusimano, 12 Fed. R. 504, 506. 87. Morningstar v. Cunningham, 110 Ind. 328, 334, 11 N. E. R. 593, 59 Am. Rep. 211. 88. Walls V. Bailey, 49 N. Y. 464, 471, 10 Atn. Rep. 407. 89. Esriche Diet. Juris.; Cutter v. Waddingham, 22 Mo. 206, 284; Adams v. Pittsburg Ins. Co., 76 Pa. St. 411, 414. 462 THE LAW OF EVIDENCE with well known and well established customs or usages."" As said by Coleridge, J., "In all con- tracts, as to the subject-matter of which known usages prevail, parties are found to proceed with the tacit assumption of these usages ; they com- monly reduce into writing the special particulars of their agreement, but o-mit to specify these known usages, which are included, however, as of course, by mutual understanding; evidence, therefore, of such incidents is receivable. The contract in truth is partly express and in writing, partly implied or understood and unwritten.""^ § 20. A custom or usage of trade must be cer- tain and uniform. — As previously stated, it is common practice to use the terms "custom" and "usage" interchangeably ; and this practice is fol- lowed in subsequent discussions in this chapter involving these terms. A custom or usage of trade, to form a tacit part of a contract, must be certain and uniform.®^ As said by Lord Ellenborough, "a custom, how- ever ancient, miist not be indefinite and uncer- tain."''^ Thus, while a custom of paying two- pence an acre in lieu of tithes would be binding a custom of paying sometimes two pence and 90. DeWitft V. Berry, 134 U. S. 306. 91. Brown v. Byrne, 3 E. & B. 703. 92. Johnson v. Parratt, 92 Mo. App. 199; Linsley v. Lovely, 26 Vt. 123; Hinton v. Coleman, 45 Wis. 165; Hursh v. North, 40 Pa. St. 241. 93. Wilson v. Willes, 7 East 121, 3 Smith K. B. 167, 8 Rev. Rep. 604. THE PAROL EVIDENCE RULE 463 sometimes three pence would not be binding.^* § 21. It must also be continued. — A custom or usage to be binding must also be continued."^ But, as said by Mr. Browne, "an interruption which is to prove valid against a cvistom must be an actual interruption of the usage, and not simply an interruption of the right. "^* The length of time a series of acts must be continued to establish a usage depends upon the circum- stances of the particular case. Thus, a period of three weeks has been held sufficient ;''''' while, on thei other hand, a period of five years has been held insufficient.^® A mere act of indulgence or accommodation is not sufficient to establish a visage.®^ 94. Blewebt v. Tregonning, 3 A. & E. SS4, 1 Hurl and W. 431, 4 L. J. K. B. 223, S N. & M. 234, 30 E. C. L. 260. 95. Johnson v. StoddaTcJ, 100 Mass. 306; McMasters v. Penn. Ry. Co., 69 Pa. St. 374, 8 Am. Rep. 264; Citizens' Bank V. Grafflin, 31 Md. 507, 1 Am. Rep. 66. 96. Browne on Usages and Customs 16. ■97. Wall V. East River Ins. Co., 3 Duer (N. Y.) 264 (usage in insurance business). 98. Cooper v. Berry, 21 Ga. 526, 68 Am. Rep. 468. See also. Smith V. Rice, 56 Ala. 417 (two years) ; Bufifofd v. Tuck- er, 44 Ala. 89 (two years) ; Carlisile v. Wallace, 12 Ind. 252, 74 Am. Dec. 207 (one month). 99. Citizens' Bank v. Grafflin, supra (bank had discounted numerous drafts and then forwarded them to drawees for acceptance) ; Mobile, etc., Ry. Co. v. Jay, 61 Ala. 247 (Ry. Oo. had paid for medical services of employee injured while in its employ) ; Norton v. Haywood, 20 Me. 359 (owner of land had tacitly allowed others to cut timber thereon without treating them as trespassers). 464 THE LAW OF EVIDENCE § 22. It must also be reasonable. — It is also essential, for a custom or ,usage to be binding, th^t it be reasonable."" The followmg customs or usages have been held unreasonable and void : a custom which gave to the finder of bees an ab- solute title to them ;^ a custom of mining coal and not supporting the surface f a custom that a promissory note given in payment of a gold mine becomes void if the mine prove to be a fail- ure f a custom that a tenant may acquire title to personality, on the demised premises without pay- ing anything for it ;* a custom of mine owners of directing water, pumped from their mines into natural courses which carried the polluted water into water courses of adjoining owners;^ a cus- tom of the master of a vessel selling the cargo of a stranded vessel when not necessary to do. so;^ a custom of exempting common carriers from liability for negligence -^ a custom of taking sand from the land of another;^ a custom of ap- 100. McMasters v. Penn. Ry. Co., 69 ■ Pa. St. 374, 8 Am. Rep. 264; Currie v.. Syndicate, 104 111. App. 165; Strong v. Gd. Trunk Ry. Co., IS Mich. 206, 93 Am. Dec. 148; Seccomb. V. Prov. In,s. Co., 10 Allen (Mass.) 305. 1. Fi&her v. Steward, Smith (N. H.) 60. 2. Coleman v. ChadWick, 80 Pa. St. 81, 21 Am. Rep. 93. 3. Leooard v. Peeples, 30 Ga. 61. 4. Anewalt v. Hummel, 109 Pa. St. 271. 5. Penn. Coal Co. v. Sanderson, 113 Pa. St. 126, 6 Atl. R. 453, 57 Am. Rep 445. 6. Stillman v. Hurd, 10 Tex.' 107. 7. Dunham v. Dey, 13 Johns. (N. Y.) 44. . 8. Hill V. Lord, 48 Me. , 83 ; Luf kin v. Haskell, 3 Pick. (Mass.) 356. THE PAROL EVIDENCE RULE 465 propiating ice -on public waters by merely stak- ing it off f a custom of a merchant of balancing, his books at the end of each fiscal year and charg- ing interest on the balance due ;" a' custom of keeping freight paid in advance although services are not rendered ;^^ a custom of marine insurance companies to pay only two-thirds of the gross freight transported where there is a total loss ;^^ a custom of computing the total price of stone, sold at a certain price per cubic yard, by measur- ing it after it has been built into a solid wall;** a custom of allowing insurance agents commis- sions on renewal premiums, for three years from the expiration of their contracts ;** a custom of receiving a commission from both the vendor and the vendee for selling property;*® a custom of a bank not to rectify mistakes in paying checks after the party leaves the room ;*® a custom of a bank occasionally to honor overdrafts ;" a cus- tom of allowing pay for materials not received 9. Becker v. Hall, 116 la. 589, 88 N. W. R. 324. 10. Graham v. Williams, 16 Serg. & R. (Pav) 257, 16 Am. Dec. 569. 11. Emery v. Dunbar, I Daly (N. Y.) 408. 12. McGregor v. Penn.. Ins. Co., 16 Fed. Cas., No. 8,811, 1 Wash. 39. 13. Rogers v. Hayden, 91 Me. 24, 39 Atl. R. 283. 14. Castleman v. So. Mut. L. Ins. Co. v., 14 Bus;h. (Ky.) 197. 15. Raisin v. Qark, 41 Md. 158, 20 Am. Rep. 66. 16. Gallatin v. Bradford, 1 Bibb (Ky.) 209. 17. Lancaster Bank v. Woodward, 18 Pa. St. 357, 57 Am. Dec. 618. 466 THE LAW OF EVIDENCE or for services not rendered.^® Customs orusages which are repugnant to statutory provisions are also void.^^ On the other hand, the following customs and usages have been held reasonable and valid: a custom of saw-mill owners to "retain the slabs as part pay for sawing logs for others f'^ a custom of contractors to receive a profit from the amount paid employees where the contract is by the day ;^^ a custom which allows the pulling down of another's buildings, where necessary, to prevent the spreading of a fire, or the plowing of a head- land on another's land for the same purpose f^ a custom of SAvitchmen to go between cars under certain circumstances f^ a custom of brakemen to get aboard coal cars by climbing over the side f^ a custom or habit of mules to stumble f^ a custom or habit of a person to live a sober lif-e;^® a custom of the trustees of a church to serve 18. Kendall v. Russell, S Dana (Ky.) SO. 19. Ocean Beach Assoc, v. Brindley, 34 N. J. Eq. 438; Penn V. Oldhauber, 24 Mont. 287, 61 Pac. R. 649; Flewiing v. King, 100 Ga. 449, 28 S. E. R. 239; Lehman v. Marshall, 47 Ala. 362, 20. Hewitt V. John Week Lumber Co., 17 Wis. 548. 21. McDonald v.' Ford, 87 Mich. 198. 22. Fawcett v. 'Lowther, 2 Ves. 300, 28 Eng. Reprint 193. See also, 3 SalW. 112. 23. HisoTy v. Richmond & D. R. Co., 91 Ala. S14. 24. Coats V. Boston & M. R. Co., 153 Mass. 297, 25. Patterson v. So. & N. A. Ry. Co., 89 Ala. 318. 26. Floytrop v. Boston & M. Ry. Co., 163 Mass. 152; Van Gent V. Chicago, M. & St. P. Ry. Co., 80 la. 526. THE PAROL EVIDENCE RULE 467 without pay;^''' a custom of merchants to sell for cash ;^^ a custom of railroads to operate turn- tables in a certain way;^® a custom of people in general to cross a railroad at a certain point f'^ a custom' of lumbermen as regards the mode of measuring logs f^ a custom of banks that the president, in the absence of the cashier, signs checks and drafts,'''^ and a custom of express companies to notify the consignor on the refusal of the goods. ^^ § 23. It must also be known. — A custom or usage of trade to be binding must also be known to the party.^* It must be so well established and so notorious that knowledge will be conclu- sively presumed. ^^ Thus, a custom among deal- 27. Cicotte V. St. Anne's Church, 60 Mich. 552. 28. Tyler v. O'Reilly, 59 Hun (N. Y.) 618, 36 N. Y. State Rep. 106. 29. Bridg-er v. Ashville & S. Ry. Co., 27 S. C. 456, 13 Am. St. Rep. 653. 30. Duncan v. Preferred Mut. Acci. Assoc., 129 N. Y. 623, 36 N. Y. State Rep. 928. 31. Destra'han v. La. Cypress Lumber Co., 45 La. Ann. 87; Adamant Plaster Co. v. Nat. Bank, 5 Wash. 232. 32. Neiffer v. Knoxville Bank, 1 Head (Tenn.) 162. 33. Am., etc., Exp. Co. v. Wolf, 79 111. 430. 34. Blodgetft v. Vogel, 130 Mich. 479, 90 N. W. R. 277; Gil- mer V. Young, 122 N. C. 806, 29 S. E. R. 830; Ambler v. Phillips, 132 Pa. St. 167, 19 Atl. R. 71; Howard v. Gt. West. Ins. Co., 109 Mass. 384. 35. Beach v. Travelers' Ins. Co., 73 Conn-. 118, 46 Atl. R.' 867; Godcharles v. Wigeman, 113 Pa. St. 431, 6 Atl. R. 354; Union Stock Yards Co. v. Westcatt, 47 Neb. 300, 66 N. W. R. 419 ; Lyon v. Culbertson, 83 111. 33, 25 Am. Rep 349. 468 THE LAW OF EVIDENCE ers in horses that a warranty does not cover la- tent defects, which is unknown to a purchaser, does not bind him.^® And a custom of a lessor of a mine, which is unknown to his lessee, is not binding on the lessee. ^'^ § 24. It must also be consistent. — Another re- quisite of a custom or usage of trade is, it must be consistent. If two customs are contradictory both are void. Each destroys the other.^* Nei- ther, in such case, is reasonable; "for the absurd- ity and unreasonableness, of two mutually incon- sistent customs is evident, and if one custom be admitted to exist, the other, which is inconsis- tent with it, violates the requisite of reasonable- ness, and is therefore invalid."^* Again, a custom or usage of trade must not be repugnant to the express terms of the contract. This rule is ap- plicable to both oral and Written contracts. Thus, where an unambiguous contract was made for the purchase and sale of seven thousand bushels of corn, to be delivered several months later, and the vendee agreed to make advances on the con- tract of whatever money the vendor might need from time to time, but which he refused to do unless the vendor gave his promissory notes for the sums so advanced, which the vendor refused to do, in an action on the contract by the vendee against the vendor for damages for failing to de- 36. Van Hoesen v. Cameron, 54 Mich. 609, 20 N. W. R. 609. 37. Beatty v. Gregory, 17 la. 109, 85 Am. Dec. 546. 38. Aldred's Case, 9 Coke, '57b. 39. Brown on Usages and Customs 16. THE PAROL EVIDENCE RULE 469 liyer the corn as agreed, the vend* sought to prove a custom among grain merchants to re- quire promissory notes when money was ad- vanced on purchases before the grain was deliv- ered. The supreme court held, however, that as the custom was repugnant to the express terms of the contract parol testimony of the custom was inadmissible.*" Other illustrations of the application of this principle are as follows : Where a lease express- ly gives the landlord the waygoing crops a cus- tom which gives it to the landlord may not be shown. *^ Where an insurance agent's contract expressly states that certain commissions should be "as compensation in full for any and all ser- vices under this agreement" a custom which gives insurance agents commissions on renewals may not be shown.*^ Where a contract for the pur- chase and sale of grain expressly stipulates that de- livery is to be made at the place of shipment a custom that grain purchased is to be delivered 40. Gilbert v. McGinnis, 114 111. 28. See also, to the same effect, Menage v. Rosenthal, 17S Mass. 3S8, 56 N. E. R. 579; Scott v. Hartley, 126 Ind. 239, 25 N. E. R. 826; Ryan v. Dubuque, 112 la. 284, 83 N. W. R. 1073; Lake Shore, etc., Ry. Co. v. Richards, 126 111. 448, 18 N. E. R. 794; Wolf V. Campbell, 110 Mo. 114, 19 S. W. R. 622; Wilson V. Smith, 111 Ala. 170, 20 So. 134; Branch v. Pal- mer, 65 Ga. 210; Ah Tong v. Earle Fruit Co., 112 Cal. 679, 45 Pac. R. 7; Meloche v. Chicago, etc., Ry. Co., 116 Mich. 69, 74 N. W. R. 301. 41. Stukz V. Dickey, 5 Binn. (Pa.) 285, 6 Am. Dec. 411. 42. Castkman v. So. Mut. L. Ins. Co., 14 Bush (Ky.) 197. 470 THE LAW OF EVIDENCE at the place of destination may not be shown. ^^ Where a guest at an inn orders his bag-gage sent to the commercial room a custom of putting guests' baggage in their rooms may not be shown.** Where a contract stipulates for the purchase and sale of "two flocks of sheep, ex- cept 'two bucks and a lame ewe'/' at a certain price, a custom that the vendor may retain the wool on sheep sold may not be shown. *^ Where a contract for the purchase and sale of "sixty tons of ware potatoes, at £5 a ton" is silent as to the kind of ware potatoes meant, testimony that Regent ware potatoes were meant is inad- missible.** Where a contract for the purchase and sale of goods specifies the price "f. o. b. cars" at a designated place, a custom as to the mean- ing of the expression quoted, different from that, of the words in full represented by the letters "f. o. b.", may not be shown. *''^ Where a con- tract of employment specifies a definite period, a custom of giving two weeks' notice of an in- tention to terminate it may not be shown. ^^ Where goods sold are transported by a common carrier and the bill of lading runs to the order 43. Duncan v. Green, 43 la. 679. 44. Richmond v. Smith, 8 B. & C. 9, 6 L. J. K. B. O. S. 279, 2 M. & R. 235, IS E. C. L. 14. 45. Groat v. Gile, 51 N. Y. 431. 46. Smith v. Jeffryes, IS L. J. Exch. 325, 15 M. & W. 561. 47. Sheffield Furnace Go. v. Hull Goal, etc., Co., 101 Ala. 446, 14 So. 672. 48. Mitchell v. Waite, 61 N. Y. Suppl. 1108, 63 N. Y. Suppl. 165. THE PAROL EVIDENCE RULE 47I of the shipper, a custom which makes the con- signee Hable for deterioration during transit may not be shown.*^ Where a cargo of oil is insured, and there is a leakage caused by the violent roll- ing of the ship owing to a rough sea, a marine mercantile custom that insurance companies are not liable for leakage as a "peril of the sea" un- less the cargo is shifted or the casks damaged may not be shown. ^° Where a cargo is insured against "perils of the sea," a mercantile custom in New York and New Orleans of treating the term "perils of the sea"' in bills of lading as suffi- ciently broad in its sco|)e to include , damage (Caused by rats and other vermin, may not be shown. ^'^ In an actiorf against the owner of a steamboat for the loss of goods aboard, caused by the illegal seizure of the boat by armed men, a custom that the owner of the boat is not liable in such case, provided th& officers and crew are free from fault, may not be shown. ^^ § 25. It must also be compulsory. — Another essential of a custom or usage of trade is, it must be compulsory and not merely optional. As said by Sir Wm. Blackstone, "A custom that all the inhabitants shall, be rated towards the main- tainance of a bridge will be good; but a custom that every man is to contribute thereto at his 49. Charles v. Carter, 96 Tenn. 607, 36 S. W. R. 396. 50. Gabay v. Lloyd, 3 B. & C. 793, 5 D. & R. 641, 3 L. J. K. B. O. S. 116, 27 Rev. Rep. 486, 10 E. C. L. 359. 51. Aymer v. Astor, 6 Cow (N. Y.) 266. 52. Boon V. The Belfast, 40 Ala. 184, 88 Am. Dec. 761. 472 THE LAW OF EVIDENCE own pleasure is idle and absurd, and indeed no custom at all."^^ And as said by Mr. Browne, "A custom, to be binding, must be current. It must be known and understood by those whose conduct is to be afifected by its existence, whose transactions are to be influenced by its actual terms ; but if its terms were alterable at the will of each man to be bound to-day and not bound to- morrow by. the custom, .any one whose conduct might have to conform to such a rule would find it impossible to shape his actions accordingly, and any transactions which might have to be influenced by such precept would be varying, in- definite, uncertain, and absurd."^* § 26. It must also be general and universal. — And lastly, a custom or usage of trade must be general and universal, among the members of the particular class, and within the territory, in which it operates.^® As said by Shaw, C. J., "A casual or occasional exercise of a power by one of a few towns will not constitute a usage. "^® And as said by Lord Ellenborough, "I' can not hear of any arbitrary distinction between one part of the city and another. It is not competent to bankers to lay down one rule for the eastward of St. Paul's and another for the westward. They 53. 1 Blk. Gomm. 61. 54. Brown on Usages and Customs 24. 55. Syson v. Hieronymous, 127 Ala. 482, 28 So. R. 967 ; Scud- der V. Bradbury, 106 Mass. 422; Coffman v. Campbell, 87 III 98; Com. v. Phila. Co. Prison, 57 Pa. St. 291. 56. Hood V. Lynn, 1 Allen (Mass.) 103, 106. THE PAROL EVIDENCE RULE 473 might as well fix upon St. Peter's at Rome."°^ A ' particular custom may be applicable only to a particular class of persons; in which case no presumpton arises that it is binding upon a per- son who is not a member of that class/^ The fact that the majority of the people within certain territorial limits practice a particular mode of operations does not establish a custom or usage. To have such an effect the practice must be universal.®" § 27. When parol evidence admissible to ex- plain words and phrases. — Some words and phrases are used in a double sense. They have an ordinary meaning and a technical meaning. When used in relation to ordinary transactions they are usvially construed according to their or- dinary and popular meaning. But when used in relation to scientific transactions, or others in which the technical use of words is appropriate, they are frequently used in a peculiar sense. In the latter case parol evidence is admissible to show the intention of the parties to use them in that sense. ^^ Thus, parol evidence has been held 57. Rickford v. Ridge, 2 Camb. 537, 539. 58. Bernard v. Mott, 89 Mo. App. 403. 59. Porter v. Hill, 114 Mass. 106. 60. Lyon v. Lennon, 106 Ind. .567, 7 N. E. R. 311; Boi^'man ' V. Spokane First Nat. Bank, 9 Wash. 614, 38 Pac. R. 211, 43 Am. St. Rep, 870; Drury v. Young, 58 Md. S46, 42 Am. Rep. 343; Nomis v. Fowler, 87 N. C. 9; Kelly v. Waters, 31 Mich. 404; Cin. First Nat. Bank v Burk- ■ hardt, 100 U. S. 686, 25 L. ed. 766; Converse v. Wead, 142 111. 132. See notes, 42 Am. Rep. 679; 6 L. R. A. 42. 474 THE LAW OF EVIDENCE admissible to show what was intended by the words "immediate delivery;"" "barrels;"®^ "cot- ton in bales ;"^^ "team :"«* "plastering a house ;"®' "loading off shore;"*" "-a thousand ;"«^ "a day;""^ "borrowed money;"*® "homestead farm;"''" "good custom cowhide;"''^ "per square yard;"''^ "hard pan;"^^ "skins and hides ;"^* "account ;"^« "due diligence;"^* "horn chains;"" "bond;"^» "currency ;"''® "winter strained oil;"®" "a 61. Nelson v. Smitli, 36 N. J. L. 148. 62. Schiller v. Stevens, 100 Mass. 518, 97 Am. Dec. 123, 1 Am. Rep. 139. 63. Taylor v. Briggs, 2 C. & P. S2S 64. GatisoD V. Madigan, IS Wis. 144, 82 Am. Dec. 659. 65. Walls V. Bailey, 49 N. Y. 467. 66. Johnson v. Northwestern Nat. Ins. Co., 39 Wis. 87. 67. Smith V. Widson, 3 B. & Ad. 728, 23 E. C. L'. 319 (meant 1200). 68. Cochran v. Retberg, 3 Esp. 121 (only a working day). 69. Murray v. Spenfcer, 24 Md. 520. 70. Locke V. Rowell, 47 N. H. 46. 71. Wait V. Fairbanks, Brayt. (Vt.) 77. 72. Walls V. Bailey, supra. 73. Blair v. Colby, 37 Mo. 313. 74. Astor V. Union Ins. Co., 7 Cow. (N. Y.) 202 (furs not included) . 75. Waldheim v. Miller, 97 Wis. 300, 72 N. W. R. 869. 76. Bartley v. Phillips, 165 Pa. St. 325, 30 Atl. R. 842. 77. Swett V. Shumway, 102 Mass. 365, 3 Am. Rep. 471. 78. Stone v. Bradbury, U'Me. 185. 79. Pilmer v. Des TVloines Branch State Barak, 16 la. 321 ; Farwell v.. Kennett, 7 Mo. 595. 80. Hart V. Hammett, 18 Vt. 127. THE PAROL EVIDENCE RULE 475 week;"" "root;"^^ "inch of water ;"83 "to work a street ;"«* "expected ;"«5 "due bill;"«« "neces- sary signals and switchmen ;"^'^ "freight;"*^ "all faults ;"89 "with all faults ;"»» "ream;"8i "bale;'""^ "a clear bill of lading i"^^ '/sea-litter;"** "Canada money ;"*'^ "Texas money;"®® "Kentucky cur- rency ;"®'' "accepted,"®* etc. On the other hand, parol evidence has been held inadmissible to show what was intended by 81. Grant v. Maddox, 16 L. J. Exoh. 227, IS M. & W. 737 (during only part of the 'year). 82. Coit V. Commercial Ins. Co., 7 Johns. (N. Y.) 385, S Am. Dec. 282 (Sarsapajrilla not included). 83. Jackson Mill Co. v. Cha.ndos,'82 Wis. 437, 52 N. W. R. 759. 84. In re Curtis, 64 Conn. 501, 30 Atl. R. 769, 42 Am. St. Rep. 200. 85. Bold V. Raymer, 1 M. & W. 343. 86. Andrews v. Robertson, 111 Wis. 334, 87 N. W. R. 190, 87 Am. St. Rep. 870. 87. Louisville & N. Ry. Co. v. Illinois C. Ry. Co., 174 111. 448, 51 N. E. R. 824. 88. Paisch v. Dickson, 1 Mason (U. S.) 11. 89. Corter v. Coal Co., 77 Pa. St. 286. 90. Whitney v. Boardman, 118 Mass. 242. 91. Ganson v. Madigan, 15 Wis. 144. 92. Gorrissen v. Perrin, 2 C. B. N. S. 681. 93. Creery v. Holly, 14 Wend. (N. Y.) 26. 94. Sheght v. Hartshorne, 2 Johns. (N. Y.) 561. 95. Ilhompson v. Sloan, 23 Wend. (N. Y.) 71, 35 Am. Dec. 546. 96. Roberts v. Short, 1 Tex. 373. 97. Lampton v. Haggard, 3 Mon. (Ky.) 149, 98. Colgate v. Latta, 115 N. C. 127, 20 S. E. R. 388. 476 THE LAW OF EVIDENCE the words "help;"»« "deal;"i»» "delivered ;"i "in- compatible;"^ "guarantee;"^ "legitimate railroad purposes,"* etc. Where words and phrases are used in a tech- nical sense peculiar to particular professions, trades, occupations, or localities, or to the arts or sciences, parol evidence of usage in that tech- nical sense is admissible.® And "If it is a word which is of technical and scientific character, then it must be construed according to that which is the primary meaning in that technical and scientific character ; a'nd before you can give evidence of the secondary meaning of the word you must satisfy the court, from the instrument itself or from the circumstances of the case, that the word ought to be construed, not in its popu- lar and primary signification, but according to its secondary meaning."® But words and phrases which have not acquired a technical meaning with respect to the subject-matter, separate and 99. Hooker v. Hyde, 61 Wis. 204, 21 N. W. R. 52. 100. First Nat. Bank v. Coffin, 162 Mass. 180, 38 N. E. R. 444. 1. Lippert V. Saganaw Mill Co., 108 Wis. S12, 84 N. W. R. 831. 2. Gray v. Shepard, 147 N. Y. 177, 41 N. E. R. 500. 3. Phelps V. Gamewell Fire Alarm Tel. Co., 72 Hun (N. Y.) 26. 4. Abraham v. Oregon & C. R. Co., 37 Ore. 495, 60 Pac. R. 899, 82 Am. St. Rep. 779. 5. Houghton. V. Watertown Ins. Co., 131 Mass. 300; Smith V. Clayton, 29 N. J. L. 357; Barlow v. Lambert, 28 Ala. 704, 65 Am. Dec. 374; Eaton v. Smith, 20 Pick. (Mass.) 150; W.alrath' v. Whittekind, 26 Kan. 482. 6. Hoh v.'Collyer, 44 L. T. N. S. 214, L. R. 16 Ch. Div. 718. THE PAROL EVIDENCE RULE 477 distinct from their ordinary meaning, must be construed in their popular sensed § 28. To explain the meaning of code letters. The case of Kell v. Charmer. — In this case a tes- tator had made the follo'wing bequests : "I give and bequeath to my son WilHam the sum of i. x. x. To my son Robert Charles the sum of o. x. x." The testator had been a jeweler, and in his busi- ness had used certain private marks or symbols to denote prices or sums of mon6y; and accord- ing to his code thus used the letters i. x. x. repre- sented £100, and the letters o. x. x. £200. The court correctly held that parol evidence was ad- missible to show his habit of using the letters to represent the amounts indicated.* It should be observed, however, that mere declarations by him of an intention to use the letters to represent the sums indicated would, have been inadmissi- ble. § 29. To explain the term "weekly account." Case of Myers v. Sari. — In this case the words "weekly account" were contained in a condition precedent of a building contract. The condition provided that no alterations or additions were to be riiade unless directed by the architects in writing, and a "weakly account" of the same be made to them every Monday. It was contended 7. Drew v. Swift, 46 N. Y. 204; Kurtz v. Hibner, SS 111. 514, 8 Am. Rep. 665; Cornwell v. Comwell, 91 111. 414; French V. Hayes, 43 N. H. 30, 80 Am. Dec. 127; Nelson v. Morse, 52 Wis. 240; United States v. Peck, 102 U. S. 64. 8. 23 Beav. 195. 478 THE LAW OF EVIDENCE that the term "weakly account" was a term of art well known in the building trade and to all builders and architects ; and that parol testimony- was admissible to prove its meaning. This tes- timony was objected to, but the court held that' it was admissible." "Whether this evidence be as explaining the language used, or adding a tacitly implied incident to the contract beyond those which are expressed is not material. In either point of view, it will be admissible unless it labors under the obligation of introducing something repugnant to or inconsistent with the tenor of the written instrument."" § 30. To show surrounding circumstances. Case of Reed v. Insurance Company. — Parol evi- dence of the surrounding circumstances relating to a transaction, which tends to throw light upon it, is always admissible. It is to be observed, however, that in the case of a will it is always the expressed intention of the testator that gov- erns. Parol evidence of surrounding circum- stances to show his real intention would be in- 9. 3 El. & El. 306. In commenting on this case, Professor Thayer says: "This case is a valuable one as 'drawing at- tention to the fact that there is no difference in the appli- cation of this Tule between one word and another. It is sometimes thought that a perfectly familiar expression like 'bushel' or 'pound,' or 'weekly account' (as here) .cani- not be thus initerpreted." Professor Thayer's view, how- ever, is in accord with the decision in this case. 10. per Lord Campbell, C. J., in Humphrey v. Dale, 7 E. & B. 266, 274. THE PAROL EVIDENCE RULE 479 admissible, if his real intention contradicted his expressed intention. Figuratively speaking, the purpose of intro- ducing par6l evidence of surrounding circum- stances is to put the court in the shoes of the parties to the transaction, so as to enable it to see the transaction thru the eyes of the parties who entered into it. A good illustration of the application of this principle is the case of Reed V. Insurance Company. An action was brought against the defendant company to recover $5,000 insurance on the ship "Minnehaha," which was lost near Baker's Island. The policy contained the following provision : "the risk to be suspend- ed while vessel is at Baker's Island loading." When the vessel was lost it was near Baker's Island, but it was not, at that time, in the process of loading. The question was, whether the excep- -tion in the policy applied to the vessel at the time she was lost; and the supreme court of the Unit- ed States held that it did. A strictly literal con- struction of the exception would have necessi- tated a contrary ruling. But Bradley, J., who wrote the opinion, says (quoting Greenleaf) : "The duty of the courts in such cases is to ascer- tain, not what the parties may have secretly in- tended, as contradistinguished from what their words express, but what is the meaning of the words they have used." And he also adds, "availing ourselves of the light of the surround- ing circumstances in this case, as they appeared, or must be supposed to have appeared, to the 480 THE Law of evidence parties "at the time of making the contract, we cannot doubt that the meaning of the words which are presfented for our consideration is that the risk was to be suspended while the ves- sel was at Baker's Island for the purpose of load- ing, whether actually engaged in the process of loading or not."^* § 31. To explain an ambiguity. Lord Bacon's confusing statement. — Upon the subject of am- biguities the decisions are in a chaotic state; not only as to their existence imder certain circum- stances, but also as to the admissibility of parol evidence to explain them. Much of this confu- sion has grown out of Lord Bacon's statement concerning them. This statement is as follows : "There be two sorts of ambiguities 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. Ambibuitas patens is never holpen by averment; and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matters of averment, which is of inferior account in law; for that we were to make all deeds hollow and subject to averments, and so, in effect, that to pass without deed which the law appointeth 11. 95 U. S. 23. THE' PAROL EVIDENCE RULE 481 shall not pass but by deed."^^ Lord Bacon's statement, as regards the exclusion of parol evi- dence to explain a patent ambiguity, is incor- rect ; and it has been subjected to much criticism, and also repudiated.^^ Many courts, however, have followed, erroneously, Lord Bacon's view.-^* Mr. Steven says, "If the words of a document are so defective or ambiguous as to be unmean- ing no evidence can be given 'to show what the author of the document intended to say."^^ As- suming that he uses the word "unmeaning" to signify no meaning at all, the statement is correct. 12. Circa 1S97, Sir Francis Bacon, Maxims, rule XXV. (Works, Speddings, ed. 1861, Vol. XIV. 273). See also, Bacon's Max. Reg! 23, 25 ; Brown's Leg. Max. 608 et seq. 13. Palmer v. Albee, 50 la. 429; Tumlin v. Perry, 108 Ga. 520, 522, 34 S. E. R. 171 ; Excelsior Wrapper Co. v. Mes- singer, 116 Wis. 549, 93 N. W. R. 459; Simanton v.,Vliet, 61 N. J. L. 595, 40 Atl. 595; Garvin Maoh. Co. v. Ham- mond Typewriter Co. 159 N. Y. 539; 53 N. E. R. 1125; Ripon College v. Brown, 66 Minn. 179, 68 N. W. R. 837 ; Am. Savings Bamk v. Shaver Carriage Co., Ill la. 137, 138, 82 N. W. R. 484; Montgomery v. Carlton, 56 Tex. 431;, Ham v. Ceriiiglia, 73 Miss..290, 18 So. 577; Citizeos' Bank v. Brigham, 61 Kan. 727, 60 Pac. R. 754; Lee v. Carter, 52 La. Ann. 1453, 27 So. R. 739; Gallagher v. Black, 44 Me. 99. 14. Pingry v. Watkins, 17 Vt. 379; HoUman v. Whitaker, 119 N. C.113, 25 S. E. R. 793; Castleman v. Du Val, 89 Md. 657, 43 Atl. R. 821 ; Tallmadge v. Hooper, 37 Ore. 503, 61 Pac. R. 349, 1127; Delaware Indian's v. Cherokee Na- tion, 193 U. S. 127, 24 S. Ct. 342, 48 L. ed. 646; Doe v. Gwillim, 5 B. & Ad. 122, 27 E. C. L. 60. 15. Steph, Dig. of Evid., art. 91. See also, Campbell v. John- son, 44 ,Mo. 247. 482 THE LAW OF EVIDENCE It is to be observed, however, that where words have merely a doubtful meaning, owing to a latent or patent ambiguity, parol evidence is admissible; § 32. Scope of parol evidence in the case of latent and patent ambiguities. — In the case of a patent arnbiguity, which renders the intention of the party or parties to the document doubtful, parol evidence of intrinsic facts which throw light upon the intention of the parties, is admis- sible. In the case of a latent ambiguity, not only is evidence of intrinsic facts admissible, but also declarations of intention made by the party or parties to the document. ^"^ As said by Mr. Un- derbill, "if a benefit is claimed by several persons, all answering the description of the will in one or more material particulars, though none of them answers to it perfectly and accurately in every particular, extrinsic evidence is received, including expressions of intentions. "^'^ § 33. Subdivision of latent ambiguities. — A latent ambiguity is one which is brought to light by evidence de hors the document. The docu- ment itself gives no intimation of it. There are two subdivisions of latent ambiguities, which are as follows: (i) Where the person or thing, the object or subject of the disposition, is described in terms which are applicable indifferently to more than one person or thing. (2) Where the description of the person or thing is partly cor- 16. Browne's Parol Evid. 438; Decker v. Decker, 121 111. 341, 12 N. E. R. 750 ; Miller v. Traverse, 8 Bing. 244. 17. Underhill on the Law of Wills, § 910. THE PAROL EVIDENCE RULE 483 rect and partly incorrect, and the correct part leaves something equivocal.^® §34. Illustrations of the two subdivisions of latent ambiguities. — The first two examples giv- en below illustrate the first subdivision of latent ambiguities, and the second two examples illus- trate the second subdivision. 1. John Doe devises Maple Hill farm "to my nephew Thomas Doe." Extrinsic evidence shows that there are two nephews of John Doe who exactly fit the description of the devisee. 2. In case i, extrinsic evidence shows that John Doe was seized of two farms at his death, one named East Maple Hill and the other West Maple Hill. 3. Thomas Smith devises "my Oak Hill farm, in the occupation of John White, to my son Rob- ert Henry Smith." Extrinsic evidence shows that the testator's Oak Hill farm was never oc- cupied by John White. 4. In case 3, extrinsic evidence shows that the testator had only two sons, and that one was named Thomas Robert Smith and the other James Henry Smith. In cases i and 2 all the courts agree that parol evidence is admissible to show not only sur- rounding circumstances but also declarations of intention made by the testator. But as regards cases 3 and 4 the decisions are in hopeless con- flict, the explanation of which is given in § 35 and § 36 of this chapter. 18. Schouler on Wills (3d ed.), § 576. 484. THE LAW OF EVIDENCE § 35. The case of Miller v. Traverse.— In this case, Tindal, C. J., discusses the two subdivis- ions of latent ambiguities as fallows : "The first class is, where the description of the thing de- vised, or of the devisee, is clear upon the face of the will; but upon the deatli of the testator it is found that there are more than one estate or subject-matter of devise, or more than one per- son whose description follows out and fills the words used in the will. As where the testator devises his manor of Dale, and at his death it is found that he has two. manors of that name, South Dale and North Dale; or where a man devises to his son John, and he has two sons of that name. In each of these cases respectively parol evidence is , admissible to show which ma- nor was intended to pass and which son was in- tended to take. The other class of cases is that in which the description contained in the will of the thing intended to be devised, or of the per- son who is intended to take, is true in part, but not true in every particular. As where an es- tate 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 la,tter class, of cases parol evidence is admissible to. show what estate was intended to pass, and who was the devisee in- tended to take, provided there is sufficient in- THE PAROL EVIDENCE RULE 485 dication of intention appearing on the face of the will to justify the application of the evidence."^* § 36. Conflict in liie decisions. Case of Doe v. Hiscocks. — As regards the admissibility of dec- larations of intention, nlade by the party to the document to explain a latent ambiguity, the de- cisions are in hopeless conflict. As said by Brace, J., "There is much conflict of judicial opinion on the subject. The cases are numerous and ir- reconcilable."^" ^his conflict, however, is con- fined to the second subdivision of latent ambigui- ties. All the courts agree, as previously stated, that declarations of intention, in the case of the first subdivision, are admissible. In the case of Doe v. Hiscocks, which was de- cided seven years after the case of Miller v. Tra- verse, the court strongly approved of the decis- ion in the latter case; and evidently believed that it was sustaining it in toto. As a matter of fact, however, upon the point of admitting declara- tions of intention in the case of the second sub- division of latent ambiguities, it overruled -that case. And in England, the decision in Doe v. Hiscocks has been followed since the decision in this case was rendered. In this country a ma- jority of the courts have follovved the decision in Miller v. Tf averse; but a considerable number of them have followed the decision in Doe v. Hiscocks. And this fact is the basis of Justice Brace's statement quoted above. 19. 8 Bing. 244. 20. Willard v. Darrah, 168 Mo. 660, 668. 486 THE LAW OF EVIDENCE Some text-book writers on evidence approve of the decision in Miller v. Traverse while others approve of the decision in Doe v. Hiscocks. § 37. Parol evidence admissible for purpose of identification. — Parol evidence is always admis- sible to identify a document, person, or thing, material to the case.^^ Thus, it has been held admissible to identify land;^^ a check ;^^ a mill;^* a church f^ a tag on a valise ;^® lumber^^'^ a monu- ment ;^^ a promissory note;^® persons;^" personal property including animals;*^ a deed;^^ a muti- 21. Gage v. Cameron, 212 111. 146, 72 N. E. R. 204; Petrk v. Trustees, 158 N. Y.'4S8, S3 N. E. R. 216; King v. N. Y. & C. Gas Coal. Co., 204 Pa. St. 628, 54 All. R. 477;"Bagley V. Rose Hill Sugar Co., Ill La. 249, 35 So. R. 676; John- son V. McKay, 121 Ga. 763, 49 S. E. R. 757; Doolan v. Carr, 125 U. S. 618. 22. Hadley v. Citizens' Sav. Inst., 123 Mass. 301 ; Webster V. Blount, 39 Mo. 500; Peart v. Price, 152 Pa. St. 277; Baker v. Hall, 158 Mass. 361. 23. Lewis V. Beaky, 73 Conn. 744, 48 Atl. R. 212. 24. Stheibel v. Slagle, 89 Ind. 323. 25. Wyandotte Co. Com. v. Wyandotte Presb. Church, 30 Kati. 620. 26. Comni. v. Morrell, 99 Mass. 542. 27. Ames v. First Div. St. Paul, etc., Ry. Co., 12 Minn. 412. 28. McAfferty v. Conover's Lessee, 7 Ohio St. 99, 70 Am. Dec. 57. 29. Goddard v. Saiwyer, 91 Mass. 78. 30. Logan v. Gray, Tapp. (Ohio) 69. 31. Clark v. Crawfordsville Co., 125 Ind. 277; Haller v. Par- rott, 82 la. 42; Rugg v. Hak, 40 Vt. 138. 32. West V. State, 22 N. J. L. 212. THE PAROL EVIDENCE RULE 487 lated document ;^^ the beneficiary of a bank de- posit;^* a highway;®^ a contract ;^^ the prior owner of money used in paying for land,^'' etc. § 38. Same. Application of the rule to wills. — Parol evidence has been frequently heW admis- sible for the purpose of identification in the case of wills. As previously stated, however, it is the expressed intention that governs in this class of cases. But parol evidence of surrounding cir- cumstances is always admissible when necessary to elucidate the expressed intention. On the other hand, parol evidence is inadmissible to prove facts inconsistent with the language of the will.^* Moreover, as said by Mr. Wigram, "Where there is nothing in the context qf a will from which it is apparent that a testator has used the words in which he has expressed him- self in any other than their strict and primary sense, and where his words so interpreted are 33. Bakes Land Co. v. Suttoti, 32 Ind. App. 14, 69 N. E. R. 179. 34. Bartlett v. Remington, 59 N. H. 364. 3.S. Rich V. Rich, 16 Wend. (N. Y.) 663. 36. McClintock v. Hughes Bros. Mfg. Co., 29 Tex. App. 18. 37. Ducie V. Ford, 138 U. S. 587. 38. Bingel v. Volz, 142 111. 214, 34 Am. St. Rep. 64; Waldron V. Waldron, 45 Mich. 350; Magee v. McNeal, 41 Miss. 17, 90 Am. Dec. 354; Griscom v. Evens, 40 N. J. L. 402, 29 Am. Rep. 251; Abercrombie v. Abercrombie, 27 Ala. 489; Massaker v. Massaker, 13 N. J. E. 264; Earl of Newburg, V. Countess of Newburg, 5 Madd. 364; Miller v. Travers, supra; Charter v. Charter, L. R.- 7 H. L. 364; Tucker v. Seaman's Society, 7 Met. (Mass.) 182. 488 THE LAW OF EVIDENCE sensible with reference to intrinsic circumstan- ces, 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, al- though 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 be tendered."^* Thus, where a legatee is designated in a will as "child," there is a prima facie presumption that the testator meant a legitimate child; and if there is a legitimate child who meets the description, parol' evidence is inadmissible to show that he really meant an illegitimate child. *° On the other hand, where the proper meaning of the word is of absolute necessity excluded, as where there is ho legitimate child, parol, evidence is admissi- ble to show that a certain illegitimate child was intended.*^ This rule is applicable where the tes- tator used the word "child" and really meant grandchild ; and in other analogous cases. *^ § 39. To disprove the legal existence of a docu- ment. — Where the purpose of introducing oral evidence is to disprove the legal existence of a document the parol evidence rule has no. appli- cation. As said in a Vermont jzase, "The i^ule 39. Wigram on Wills, prop. II. 40. Wigram on Wills, prop. II, 41. Wigram on Wills, prop. II. 42. St. Luke's Home Assoc. 52 N. Y. 191, 11 Am. Rep. 697;. Price V. Page, 4 Ves. Jr. 680; Washington v. Lee W. Ap- peal, ill Pa. St. 572; Jones v. Newman, 1 W. Black, 60. THE PAROL EVIDENCE RULE 489 which prohibits the introduction of parol evi- dence to vary a written instrument has no ap- plication when the legal existence or binding force of the instrument is in question."*^ Thus, where two parties signed a written contract of purchase and sale of a patent, and it was orally- agreed that the contract was not to become bind- ing unless it should be approved by two' specified experts, parol evidence was held admissible to show the oral agreement, and also, to show that only one of the experts approved of the patent.** Nor does the rule apply where the purpose of introducing the parol evidence is to show that a document is void because of a mater- ial alteration. *° § 40. To defeat the operation of an instrument owing to fraud, illegality, duress, incapacity of the parties, etc. — ;Parol evidence is always ad- missible to show fraud, illegality, duress, inca- pacity of the parties, etc.*® In these cases the 43., Webster v. Smith, 72 Vt. 12, 13, 47 Atl. R. 101. 44. Pym v. Campbell, 6 E. & B. 370 '(a leading case). See also. Black v. Wabash, etc., Ry. Co., Ill 111. 351, 53 Am. Rep. 628 ; Joerdens v. Schrimpf, 11 Mo. 383 ; Earl v. Rice^ 111 Mass. 17; Thomas v. Scutt, 127, N. Y. 133, 27 N. E. R. 961 ; Gregg v. Groesbeck, 11 Utah, 310, 40 Pac. R. 202, 32 L. R. A. 266; Cummings v. Powell, 116 Mo. 473, 21 S. W. R. 1079, 38 Am. St. Rep. 610. 45. Everman v. Robb, 52 Miss. 653, 24 Am. Rep. 682 ; Lee v. Butler, 167 Mass. 426; McNail v. Welch, 125 111. 623; Richards v. Day, 137 N. Y. 183. 46. Snyder v. Free, 114 Mo. 360; Abbott v. Marshall, 48 Me. 44; Razor v. Razor, 142 111. 375. 490 THE LAW OF EVIDENCE purpose of the parol evidence is not to vary or contradict the language of the instrument, but to show circumstances pertaining to the formation of the transaction with the view of defeating the operation of the document. Thus, parol evidence is admissible to show fraud ;*'^ illegality;*^ dur- ess;*^ forgery;^" coverture;®^ infancy ;^^ gross in- toxicatioh ;^^ mental incompetency,'* etc. § 41. To show mistake of fact. — As a general rule, parol evidence, is admissible to show a mis- take of fact, but not a mistake of law. The effect of a mistake of fact in the formation of a' con- 47. Gore v. Malsby, 110 Ga. 893, 36 S. E. R. 315; Humbert v. Larson, 99 la. 275, 68 N. W. R. 703 ; Langley v. Rodri- guez, 122 Cal. 580, 55 Pac. R. 406, 68 Am. St. Rep. 70; Gustaffson v. Rustemeyer, 70 Conn. 125, 39 Atl. R. 104, 66 Am. St. Rep. 92, 39 L. R. A. 644; Cooper v. Rose Valley Mills, 185 Pa. St. 115, 39 Atl. R. 824; Ramto v. Pattison, 133 Mich. 655, 95 N. W. R. 722; Trambly v.' Riicard, 130 Mass. 259. 48. Sherman v. Wilder, 106 Mass. 537 ; Succession of Fletcher, 11 La. Ann. 59 (adulterous intercourse) ; Detroit Salt Co. V. Nat. Salt Co., 134 Mich. 103, 96 N. W. R. 1 (restraint of trade) ; Fenrwick v. Ratcliff, 6 Mon. (Ky.) 154 (usury). 49. Heeter v. Glasgow, 79 Pa. St. 79, 21 Am. Rep. 46 ; Mc- Allister V. Engle, 52 Mich. 56, 17 N. W. R. 694. 50. State V. Gonce, 79 Mo. 600; Patterson v. Collier, 75 Ga. 419, 58 Am. Rep. 472. 51. Dale v. Roosevelt, 9 Cow. (N. Y.) 307; Bradley v. Cas- well, 65 Vt. 231, 26 Atl. R. 956. 52. Van Vaikenburgh v. Rouk, 12 Johns. (N. Y.) 338; Ayers V. Burns, 87 Ind. 245, 44 Am. Rep. 759. 53. Prentice v. Achorn, 2 Paige Ch. (N. Y.) 30. 54. Deu V. Clark, 10 N. J. L. 258; Hoder v. Beard, 54 Ohio St. 398, 43 N. E. R. 1040, 56 Am. St. Rep. 720. THE PAROL EVIDENCE RULE 49J tract, when it has any effect at all, is to render the contract void. Thus, where the subject-mat- ter of a contract, unknown to the parties, has ceased to exist ;^® or one of the parties is mistak- en as to the identity of the other party ;^* or is mistaken as to the nature of a written contract which he has been induced by the fraudulent representations of the other party to sign f^ the contract is void. And parol evidence is admissi- ble to show the mistake of faet.®^ Many cases hold that evidence of a mistake of fact is admis- sible only in a court of equity.^® But the trend of the decisions, under the reformed procedure, is to the contrary.^" To render parol evidence ad- 55. Gibson V. Pelkie, 37 MicI^. 380; Anderson y. Armstead, 69 TU. 452; Riegel v. Ins. Co., 153 Pa. St. 134, 25 Atl. R. 1030; Strickland v. Turner,' 7 Exch. 208. 56. Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9': Barnes v. Shoemaker, 112 Ind. 512, 14 N. E. R. 367; Boulton V. Jones, 2. Hurl & N. 564. 57. Walker v. Ebert, 29 Wis. 194, 9 Am. Rep. 54; Trambly v. Ricard, 130 Mass. 259; Schaper v. Schaper, 84 III 603: Soper V. Peck, 51 Mich. 563, 17 N. W. R. 57. 58. Somerville v. Coppage, 101 Md. 519, 61 Atl. R. 318; Lass- ing V. James, 107 Cal.- 348, 40 Pac. R. 534; Cooper v. Rose V. Valley Mills, 185 Pa. St. US, 39 Atl. 824;' Goode V. Riley, 153 Mass. 685 ; Butler v. State, 81 Miss. 734, 33 So. R. 847; White v. Jones, 14 La. Ann. 681. 59. Boyce V. Wilson, 32 Md, 122; Knowlton v. Campbell, 48 W. Va. 294, 37 S. E. R. 581'; Dismukes v. Wright, '20 N. C. 346 ; Van Horn v. Van Bom, 49 N. J. Eq. 327, 23 Atl. R. 1079; Pierson v. McCahill, 21 Cal. 123. 60. Schotte V. Meredith, 192 Pa. St. 159, 43 Atl. R. ^952; El- liott V. Horton, 28 Grat. (Va.) 766; Sutton v. Sutton; 25 Ga. 383. See also, 20 Cent. Dig. § § 1990-2004. 492 THE LAW OF EVIDENCE missible to show a mistake of fact in relation to a document the mistake must be alleged in the plead- ings.®^ As a general rule, parol evidence is inad- missible to show a mistake of law.®^ Where there is a mistake of expression in re- ducing a contract to writing parol evidence is admissible to show the true intention of the par- ties. In such case a court of equity will reform the instrument and make it conform to the real agreement. It is essential, .however, to a reform- ation of the instrument, that the evidence be clear and convincing.®^ Parol evidence is admissible to show a mistake of fact, not only in the case of contracts, but also in cases of deeds of land;®* deeds of trust;®® mortgages ;®® leases ;®^ bills and notes ;®^ assign- 61. Krueger v. Nicola, 20S Pa. St. 38, 54 Atl. R. 494; Hufif v. Thomas, 1 Mon. (Ky.) 158. 62. In re Meckky, 20 Pa. St. 478; Potter v. Sewall, 54 Me. 142. 63. Fudge v. Payne, 86 Va. 306, Stockbridge Co. v. Hudson Co., 102 Mass. 45; Tesson v. Atl. Ins. Co., 40 Mo. 33, 93 Am. Dec. 293. 64. White V. Miller, 22 Vt. 380; Way v. Lowery, 72 Ga. 63; Doe. V. Pickett, 51 Ala. 584; Hedge v.S'ims, 20 Ind. 574; Elliott V. Horton, 28 Gratt. (Va.) 766. 65. Lauderdale v. Hallock, 7 Sm. & M. (Miss.) 622. 66. Lippincott v. Whitman, 83 Pa. St. 244; Sieberling v. Tip- ton, 113 Mo. 373, 21 S. W. R. 4 (in discharge of mort- gage) ; Armstrong v. Armstrong, 36 La. Ann. 549; ElHs V. Kenyon, 25 Ind. 134. 67. Snyder v. May, 19 Pa. St. 235. 68. See 8 Cyc. 252, note 34. THE PAROL EVIDENCE RULE 493 merits f^ etc. It should be remembered, however, that parol evidence is not admissible to modify the expressed intention of a testator as contain- ed in his will. § 42. To show that a document purporting to be a contract was not so intended. — Where an instrument purports on its face to be a contract, parol evidence is inadmissible to vary its lan- guage; but parol evidence is admissible in such case to show that the parties intended the instru- ment not to be a c6ntract.''^'' § 43. To prove a trust created by operation of law.^There are two classes of trusts created by operation of law. One is constructive trusts and the other resulting trusts. The former, which is always permeated with fraud, either actual or constructive, is created by operation of law to satisfy the requirements, of honesty and fair deal- ing. When a person acquires the legal title to property by circumvention, imposition, or fraud, or by virtue of a confidential relation or influence, which renders it inequitable for him to enjoy the beneficial interest of the property, a court of equity will raise a trust by construction, and treat such person as trustee of the property hold- ing the legal title for the benefit of the party thus imposed upon. And parol evidence is ad- 69. Bolster v. Bismark Bldg., etc., Assoc, 29 Pittsburg Leg. J. (Pa.) 97. 70. Pechwer v. Phoenix Ins. Co., 65 N. Y. 195 ; Bruce v. Snow, 18 N. H. 514; Hathaway v. Rogers, 112 la. 638, 84 N. W. R. 674. 494 THE LA\Y OF EVIDENCE missible in such case to show the acts and cir- cumstances upon which the constructive trust is founded. Thus, where a partner clandestinely takes a renewal lease in his own name a court of equity will treat him as a trustee of the property for the benefit of the firm.''^ Again, where a person purchases property for another with the latter's money and takes title in his own name, a. court of equity will treat the grantee as a trustee of the property for the use and benefit of the party who furnishes the mon- ey. And parol evidence is admissible in such case to shdw the circumstances from which the resulting trust is impliedly created.''* As said by Magruder, J., "Since the whole foundation of re- sulting trusts of this class is the ownership and payment of the purchase money by one when the title is taken in the name of another, it follows that such trusts may be established by parol evi- dence."''* § 44. To show non-acceptance. — Where a writing is signed by only one of the parties to a contract parol evidence is admissible to show 71. Mitchell V. Reed,. 61 N. Y. 123, 19 Am. Rep. 252. See also, Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192; Thompson's Appeal 22 Pa. 16; King v. Cushman, 41 III. 31, 89 Am. Dec. 366; Larmon v. Knight, 140 111. 232, 29 N. E. 1116, 33 Am. St. Rep. 229. 72. Van Buskirk v. Van Buskirk, 148 III. 8, 19; Springer v. Kroeschell, 161 111. 358, 362; Ryder v. Loomis, 161 Mass. 161, 36 N. E. R. 836. 73. Van Buskirk v. Van Buskirk, supra. THE PAROL EVIDENCE RULE 495 that the Other party has not accepted it.''^* And parol evidence is admissible to show non-accept- ance of a grant/® deed of trust/*"' or lease. '^'^ Also tp show that a writing which purports to be an official certificate is a forgery.'''® § 45. To vary the effect of a receipt. — The pa- rol evidence rule is not applicable to a mere re- ceipt. Such an instrument, even when, it express- ly states that it is "in full of all demands," does not possess such a contractual nature as to make the rule applicable. In such case parol evidence is admissible to contradict the written state- ment.''^ But where a writing which is in the form of a receipt embodies the elements of a contract pcirol evidence is inadmissible to vary it.®° And where a writing embodies the elements of both a receipt and a contract parol evidence is admis- sible to vary the part which constitutes merely 74. Stone v. Daggett, 73 111. 367. 75'. Corbett v. Norcross, 35 N. H. 99. 76. Armstrong v. Morrill, 14 Wall. (U. S.) 120, L. ed. 765. 77. Johnson y. Smith, .165 Pa. St. 195, 30 Atl. R. 675. 78. Hopkins V. Danby School Dist., 27 Vt. 281. 79. Haverly v. State Line, etc., Ry. Co., 125 Pa. St. 116, 17 Atl. R. 224; Komp v. Raymond, 175 N. Y. 102, 67 N. E. R. 113; Clark v. Maxbourg, 33 Kan. 471, 6 Pac. 548; Moitnce v. Kurtz, 101' la. 190, 70 N. W. R. 119; Rarden V. Cunningham, 136 Ala. 263, 34 So. R. 26. 80. Fordice v. Scribner, 108 Ind. 85, 9 N. W. R. 122; Gravke V. Lambkin, 120 Ala. 210, 24 So. R. 756; Thompson v. Williams, 30 Kan. 114, 1 Pac. R. 47; Cohen v. Jacoboice, 101 Mich. 409, 59 N. W. Jl. 665; Cass v. Brown, 68 N. H. 85, 44 Atl. R. 86; Grier v. Mut. L. Ins. Co., 132 N.C. 132, 44 S. E. R. 28. 496 THE LAW OF EVIDENCE a receipt, but inadmissible to vary the part which is contracttiral.^^ According to the better view, the customary- warehouse and storage receipt is contractual in its nature, and parol evidence is not admissible to vary it.*^ But where it is only a mere acknowl- edgment of the receipt of property it may be varied by parol evidence."** A receipt which embodies an agreement of compromise, and which is in the nature of an ac- cord and satisfaction, is within the parol evidence rule. In the absence of fraud, accident or mis- take, oral evidence is inadmissible to vary it.^* § 46. Application of the rule to a release. — Usually, a relej\se is of a contractual nature ; and where it is of such a nature parol evidence is in- admissible to vary it.^^ But where it partakes of the nature of a mere receipt it may be varied- by parol evidence. ^^ Thus, where the writing is a 81. Goodwin v. Goodwill, 59 N. H. 548; Hossack v. Moody, 39 III. App. 7. 82. Thompson v. Thompson, 78 Minn. 389, 81 N. W. R. 204, 543; Hirsch v. Salem Mils Co., 40 Ore. 601, 67 Pac. 949, 68 Pac. 733 ; Union Storage Co. v. Speck, 194 Pa. St. 126, 45 Atl. R. 48. 83. Hirsch v. Salem Mills Co., supra. 84. Jackson v. Ely, 57 Ohio St. 450, 49 N. E. R. 792; Kam- m-ermeyer v. Hilz, 107 Wis. 101, 82 N. W. R. 689. 85. Leddy v. 'Barney, 139 Mass. 394, 2 N. E. R. 107; Clark V. Mallory, 185 III. 227, 56 N. E.R. 1099; Atchison, etc., Ry. Co. V. yanordstrand, 67 Kan. 386, 73 Pac. R. 113; Van Bokkelen v. Taylor, 62 N. Y. 105 ; Cassilly v. Cass'illy, ■57 Ohio St. 582, 49 N. E. R. 795. 86. Scott V. Scott, 105 Ind. 584, 5 N.> E. R. 397. THE PAROL EVIDENCE RULE 497 mere recital of payment of the consideration parol evidence is admissible to vary it." And wh«re a writing under seal certifies to the pay- ment of a mortgage and the accompanying note, and authorizes the register of deeds to discharge the mortgage on the record, parol evidence is ad- missible to vary or contradict it.^^ § 47. Rule not applicable to a writing which is not evidence of a right: — Where a writing is not contractual, or does not dispose of property, but merely acknowledges a fact, parol evidence is admissible to vary it.*^ Thus, statements of account,®" memoranda,®^ bills of}parcels,®^ etc., may be varied bv parol evidence. § 48. Rule not applicable to mere clerical er- rors. — The parol evidence rule is not applicable to mere clerical errors. Thus, parol evidence has been held admissible to show that the descrip- tion of a lot in a deed was made thru error and accident, and that the lot actually sold was a dififerent one from that described in the deed.®* And it has been held admissible to explain and 87. Soule V. Soule, 157 Mass. 451, 32 N. E. R. 663. 88. Thompson v: Layman., 41 Minn. 295, 42 N. W. R. 1061. 89. Labbee v. Johnson, 66 Vt. 234, 38 Atl. R. 986; Smith v. MayfiieM, 163 III. 447, 45 N. E. R. 157; Cliflford v. Baess- mian, 41 Wis. 597. 90. Parker v. Miller, 27 N. J. L. 338; Hostetler, 62 Ind. 183. 91. Thomas v. Nelson, & N. Y. 118; Steed v. Harvey, 18 Utah 367, 54 Pac. R. 1011, 72 Am. St. Rep. 789. 92. Irwin v. Thompson, 27 Kan. 643; Stacy v. Kemp, 97 Mass. 166. 93. Palangue v. Guesnor, 15 La. 311. 498 . THE LAW OF EVIDENCE correct irreconcilable dates in an administrator's deed.^* It also has been held that while parol evidence is not competent to contradict and change the calls in a grant or deed, it may be used, and marked lines proved, to locate the cor- ner called for, or to show that, by a slip of the pen a course different fro'm that intended was writ- ten in making out the survey and grant, as south instead of north.^^ Also, that a mistake in draw- ing an instrument contrary to the intention of the parties is a ground for relief in equity.'" § 49. To show the real consideration. — Ordin- arily, parol evidence is admissible to show the real consideration of the transaction.®'' Thus, it is admissible to show that it was less,®* or more,®® than that expressed in the instrument ; or to show what the term "other considerations" compris- ed;^"® or to show the actual consideration where 94. Moore v. Wingate, S3 Mo. 398. 95. Davidson v. Sliuler, 119 N. C. 686. 96. Chapman v. Allen, Kirby (Conn.) 399,. 1 Am. Dec. 24. 97. Sioux City First Nat. Bank v. Flynn, 117 la. 493, 91 N. W. R. 784; Clark v. Hedden, 109 La. 147, 33 So. R. 116; Smith V. McLean, 146 Ind: 77, 45 N. E. R. 41 ; Arnold v. Arnold, 137 Cal. 291, 70 Pac. R. 23 ; Booth v. Hynes, 54 111. 363; Folmar y. SileT, 132 Ala. 297, 31 So. R. 719; Butt V. Smith, 121 Wis. 566; 98. Hodges v. H^al, 80 Me. 281, 14 Atl. 11, 6 Am. St. Rep. 199; Pique v. Arendale, 71 Ala. 91. 99. McGary v. McDermott, 207 Pa. St. 620, 54 Atl. R. 46; Galvin V. Boston El. Ry. Co., 180 Mass. 587, 62 N. E. R. 961. 100. Cheesman v. Nioholl, 18 Colo. App. 174, 70 Pac. R. 797; Nickerson v. Saunders, 36 Me. 4l3. THE PAROL EVIDENCE RULE 499 it is given as nominal in' the writing;^ or where the writing expresses no consideration at all.* It has been held that where a consideration is expressed in the document the additional con- sideration shown by parol must be different in quality or character from that expressed.^ The consideration expressed in a deed or other in- strument is prima facie the amount agreed to be paid ; but it may be shown by parol that in addi- tion the grantor was to have the privilege of raising for his own use a crop of wheat upon the land conveyed;* or that the grantee agreed to erect a sawtnill on the land -^ or to pay the grantor one-half the profit in case of a resale f or grade a certain lot, and remove a building ;''^^ or to build a depot on the land;* or that intoxi- cating liquors should not be sold on the land;® or that the grantee (grantor's wife) would de- vise to the grantor one-third of her estate, in- 1. Harraway v. Harraway, 136 Ala. 499, 34 So. R. 836. 2. Trustees v. Saunders, 84 Wis. 570, S4 N. W. R. 1094; Guidery v. Green, 95 Cal. 630. 3. Hyne v. Campbell, 6 Mon. (Ky.) 286. 4. Breitenwischer v. Clough, 111 Mich. 6, 69 N. W. R. 88, 66 Am. St. Rep. 372. 5. Fraly V. Beotley, 1 Dak. 25, 46 N. W. R. 506. 6. Thomas v. Barker, 37 Ala. 392. 7. Mobik, etc., Ry. Co. v. .Wilkinson, 72 Ala. 286. 8. Louisville, etc., Ry. Co. v. Neafus, 93 Ky. S3, 18 S. W. R. 1030, 13 Ky. L. Rep. 951. 9. Hall V. Solomon, 61 Conn. 476, 23 Atl. R. 876, 29 Am. St. Rep. 218. 500 THE LAW OF EVIDENCE eluding the land conveyed ;" or that the grantee agreed to assume a certain incumbrance/'- or support the grantor,^^ or consummate a mar- riage/* etc. As said in a Maine case, "The only effect of the consideration clause in a deed is to estop the grantor from alleging that it v^ras executed without consideration, and to prevent a resulting trust in the grantor. For every other purpose, it may be varied or explained by parol proof. The grantor may show, notwithstanding the acknowledgment of payment, that no mon- ey was paid, and recover>the price, in whole or part, against the grantee."^* And even where the grantor covenants against incumbrances, parol evidence is admissible to show that the grantee orally agreed, as part of the considera- tion, to assume specific existing incumbrances.^^ Parol evidence is admissible to show the real consideration in the case of documents other than deeds. Thus, it has been held admissible 10. Manmng v. Pippin, 86 Ala. 357, 5 So. R. 572, 11 Am. St. Rep. 46. 11. Hays V. Peck, 107 Ind. 389; Harts v. Emery, 184 111. 560, 56 N. E. R. 865 ; Lowry v. Downey, 150 Ind. 364, 50 N. E. R. 79. 12. Coleman v. Gammon, (la.), 83 N. W. R. 898. 13. Tolman v. Ward, 86 Me. 303, 29 Atl. R. 1081, 41 Am. St. Rep. SS6. 14. Gk>odspe€d v. Fuller, 46 Me. 147, 71 Am. Dec. 576 and note. See also, Cardinal v. Hadley, 158 Mass. 352, 35 Am. St. Rep. 492. 15. Johnson v. Elmen, 94 Tex. 168, 59 S. W. R. 253„86 Am. St. Rep. 845, 52 L. R. A. 162. THE'PAROL EVIDENCE RULE 50I in the case of bonds ;^® assignments;^'^ releases;^* bills of sale;^^ contracts,^" etc. Where the expressed consideration constitutes an operative part of a contractual act it may not be contradicted by parol evidence. Thus, in an action against a railway company for damages for personal injuries the company pleaded a re- lease, and the plaintiff replied that the release was without consideration. The release obli- gated the company to pay the plaintiff a specified sum "in addition to all fees and charges payable to physicians and St. Vincent's hospital for ser- vices and care rendered to said Houlihan on ac-- count of such injuries, which amount of fee's and charges said^ company, as a part of said compro- mise, agrees to pay;" and the court held that the consideration expressed constituted an opera- tive part of a contractual act, and therefore, parol evidence Was not admissible to vary or contra- dict it.'^^ But where the consideration expressed 16. Singer Mfg. Co. v. Forsyth, 108 Ind. 334, 9 N. E. R. 372; Baldwin v. Carter, 17 Conn. 201, 42 Am., Dec. 735. 17. Kidder v. Vandersloot, 114 III. 133, 28 N. E. R. 460; Booth V. Dexter Steam Fire Engine Co., 118 Ala. 369, 24 So. R. 40S. 18. Galvin v. Boston El. Ry. Co., 180 Mass. S87, 62 N. E. R. 961 ,■- Fry V. Prewett, 56 Miss. 783. 19. Halpin v. Stone, 78 Wis. 183, 47 N. W. R. 177; Wolf v. Haslach, 65 Neb. 303, 91 N.'W. R. 283. 20. Ryan v. Hamilton, 205 111. 191, 68 N. E. R. 781 ; Ander- man v. Meier, 91 Minn. 413, 98 N. W. R. 327 ; Graver v. Scott, 80 Pa.- St. 88. 21. Indianapolis Union Ry. Co. v. Houlihan, 157 Ind. 494, 508. 502 THE LAW OF EVIDENCE in a release is a mere recital of the amount, and is not contractual, parol evidence is admissible to vary or contradict it.^^ § 50. Parol evidence admissible to rebut or support an equity. — Parol evidence is always ad- missible to rebut an equity. ^^ A presumption raised by parol evidence may be rebutted by parol evidence.^* Thus, where back land is sold and the deed is silent as to a way of ingress and egress, and parol evidence raises a presumption of a way of necessity across the grantor's land adjoining, parol evidence is admissible to show an oral agreement between the grantor and the grantee that no way of necessity across the grantor's land exists.^® And where a testator beqtieaths two sums of money of equal amount to a person, one being expressed in the original will and the other in a codicil, and the motive expressed in each case is the same, a disputable presumption of law arises that the legacies arfe not cumulative. This presumption, however, may be rebutted by parol evidence to the contrary. As said by Plumer, V. C, "where the court raises the presumption against the intention of a double gift, by reason that the sums and mo- tives are the same in both instruments, it will re- 22. Stewart v. Chicago, etc., Ry. Co., and C. and I. C. Ry. Co., 141 Ind. 55, 59. See also. Levering v. Shockey, 100 Ind. 558. 23. Hughes v. Willcinson, 35 Ala. 453. 24. 3 Greenleaf on Evid., § 366. 25. Lebus v. Boston, 107 Ky. 98, 52 S. W. R. 956. THE PAROL EVIDENCE RULE 1503 ceive evidence that the testator actually intend- ed the double gift .he has expressed."^® It is to be observed, how^ever, that the two legacies must be equal in amount, and the motive for each the same. Moreover, it is essential that the motive be expressed in each case. As said by Plum- er, V. C, in the case cited, "The court raises this presumption only v^^here the double coinci- dence occurs, of the same motive and the same sum in both instruments. It v^^ill not raise it if in either instrument there be no motive, or a dif- ferent motive, expressed, although the sums be the same; nOr will it raise it if the same motive be expressed in both instruments and the sums be different." In the case cited, one legacy was £ 300 and the other f 500 ; and the court held that as the amounts were different there was no presump- tion that the testator intended the legacies not to be cumulative. Again, as said by Lord Bacon, "where a man devises particular legacies to his executors and makes no disposition of the surplus of his estate; in this case, according to the notions of the courts of equity, the executors shall be only trustees for the next of kin; but to rebut this equity, which arises by implication only, th,e ex- ecutors have been allowed to prove by parol evi dence that the testator designed them the sur- plus.'"'^ Parol evidence is not admissible, in the first instance to support an equity. But after an equity 26. Hurst V. Beach, S Madd. 351. 27. 2 Bacon's Abridg. (1st ed.) 309. 504 THE LAW OF EVIDENCE has been rebutted parol evidence is admissible to support it. Where the equity has not been rebut- ted, there is no necessity fpr introducing parol evidence to support it. Moreover, its effect, if any, would be to contradict the language of the instrument. As said in an English case, "in the absence of evidence to countervail the presump- tion no parol evidence in support of it can be ad- duced. In the first place, such evidence would be unnecessary; and next, its effect, if it had any, would be to contradict the language of the in- strument."^^ § 51. Parol evidence admissible to prove a set- off. — The parol evidence rule has no application to the introduction of oral evidence by the oblig- or or promisor to prove a set-off.^^ § 52. Parol evidence admissible to prove a subsequent oral agreement. — As a general rule, parol evidence is admissible to prove subsequent oral agreements.^" Ordinarily, the parol evidence rule is restricted to prior and contemporaneous agreements. Thus, parol evidence has been held admissible to show a subsequent oral agreement 28. Palmer v. Newell, 20 Beav. 32, 8 De G. M. & G. 74, 24 L. J.xOh. 424. See also, Reynolds v. Robinson, 82 N. Y. 103, 107; Richards v. Humphreys, IS Pick. (Mass.) 133, 139. 29. Noyes v. Hall, 28 Vt. 645. 30. Todd V. Allen, 18 Kan. 543; ThoTO,as v. Barnes, 156 Mass. 581, 31 N. E. R. 683; Davis v. Scavern, 130 Mo. 303, 32 S. W. R. 986; Town v. Jepson, 133 Mich. 673, 95 N. W. R. 742; Tyson v. Post, 108 N. Y. 2l7, 15 N. E. R. 316, 2 Am. St. Rep. 409 ; Heilman v. Weinman, 139 Pa. St. 143, 21 Atl. 29; Adams v. Battle, 125 N. C. 152, 34 S. E. R. 245. THE PAROL EVIDENCE RULE 505 that interest should be payable semi-annually in- stead of annually;?^ that the landlord would pay for certain specified repairs f^ that he would ac- cept less rent than that stated in the lease f^ that performance occur at a different place f^ that de- livery be made at a certain specified place f^ that title to the property sold remain in the vendor for a specified time;^* that the vendor orally warranted the property sold,^'' etc. To render parol evidence of a subsequent oral agreement admissible it is essential to show that it was founded upon a valuable consideration.** § 53. Same. Sealed instruments. — As to the admissibility of parol evidence of a subsequent oral agreement to vary the contents of a sealed instrument, the decisions are conflicting. Some hold it is inadmissible,*® while others hold the contrary.*" Where the instrument is required by law to be under seal it would seem that the parol evidence should be excluded. And this is un- 31. Sharp v. Wycoff, 39 N. J. E. 376. 32.' Woodworth v. Thompson, 44 Neb. 311. 33. Bcxjs V. Dulin, 103 la. 331, 72 N. W. R. 533; Nicol v. Burke, 78 N. Y. 580. 34. Hartford F. Iris. Co. v. Wilcox, 57 111. 180. 35. Miles V. Roberts, 34 N. H. 245. 36. Keeney v. Swan, 2 N. Y. St. 214. 37. McCormick Harvesting Machine Co. v. Hiatt, 4 Neb. 587, 95 N. W. R. 627. 38. Phillips V. Longstreth, 14 Ala. 337. See also, 9 Cyc. 308 et seq. ^ 39. Ryan v. Cooke, 172 111. 302, SO N. E. R. 213 ; Zihlman v. Cumberland Glass Co., 74 Md. 303, 22 Atl. R. 271. 40. See citations in. Cyc. 596, note 85, 597 note 86. 506 THE LAW OF EVIDENCE doubtedly the better view. The rule has been held applicable to a subsequent oral agreement to rescind a written contract, as well as to a subse- quent oral agreement to vary it.*^ It has been held, however, that parol evidence is admissible to show a subsequent oral , agreement to extend the time of performance of a contract under seal.*^ Under the California code parol evidence of a subsequent oral agreement is restricted to the doing or suffering of something not required to be done or stiffered by the terms of the writing.** § 54. Same. , Statute of frauds. — There is also considerable conflict in the decisions as to the adToissibility of parol evidence of a subsequent oral agreement to vary the contents of a written contract which the statute of frauds requires to be in writing. According to the English rule the parol evidence is inadmissible.** And the great weight of American authority,*^ including decis- ions of the supreme court of the United States,*" 41. Sinard v. Patterson, 3 Blackf. (Ind.) 3S3; Delacroix v. Bulkley, 13 Wend. (N. Y.) 71. But see cases cited in 9 Cyc. 596, note 85, 597 notes 86, 91. Also, Worrell v. For- syth, 141 111. 22, 30 N. E. R. 673. 42. Lawrence v. Miller, 86 N. Y. 131; Branch v. Wilson, 12 •Pla. 343. See also, cases cited in 9 Cyc. 597, note 87. 43. Mackinzie v. Hodgkin, 126 Cal. 591, 59 Pac. R. 33, 77 Am. St. Rep. 209. 44. Marshall v. Lynn, 6 Mees. & W. 109; Stead v. Dauber, 10 Adol. & E. 57. 45. Walter v. Victor G. Bloede Co., 94 Md. 80. 46. Swairi v. Seamans, 9 Wall. (U. S.) 271, 19 L. Ed. 554. See also, to the same effect, Emerson v. Slater, 22 Hoiw. THE PAROL EVIDENCE RULE 507 is in harmony with the EngHsh view. In the first case cited in foot-note 46 the court says : "Views of the complainants are that an agreement, though in writing and under seal, may in all cases be varied as to time or manner of performance, or may be waived altogether, by a subsequent oral agreement; but the court is of a different opin- ion if the agreement to be modified is within the statute of frauds. . . Reported cases may be found where that rule is promulgated without any qual- ification ; but the better opinion is that a writtei^ contract falling within the statute of frauds can- not be varied by any subsequent agreement of the parties, unless such new agreement is also in writing. Express decision in the case of Mar- shall V. Lynn is that the terms of a contract for the sale of goods falling within the operation of the statute of frauds cannot be varied or altered by parol." § 55. Parol evidence rule not applicable to third parties. — Ordinarily, the parol evidence rule is not applicable to strangers to the docu- ment. It is restricted to the parties to it and those who claim under it.*'^ Nor does the rule (U. S.) 28, 16 L. Ed. 360; Railroad Co. v. Trimble, 1(D Wall. (U. S.) 367, 19 L. Ed. 948; Delaware v. Iron Co., 14 Wall. (U. S.) 579, 20 L. Ed. 779; Hawkins v. United States, 96 U. S. 689, 24 L. Ed. 607. 47. Hartz v. Emery, 184 I'll. 560, 56 N. E. R. 865; Folinsbee V. Sawyer, 157 N. Y. 196, 51 N. E. R. 994; Livingston v. Heck, 122 la. 74, 94 N. W. R. 1098; Dunn v. Price, 112 Cal. 46, 44 Pac. R. 354; Myers v. Taylus, 107 Tenn. 364, 64 S. W. R. 719. 5o8 THE LAW OF EVIDENCE apply where a stranger is a party to the suit; even when one of the parties to the document is the other party.** Moreover, since the stranger in such case may introduce parol evidence to vary the terms of the instrument, the other party to the suit, although a party to the instrument, is entitled to the same privilege.*" This principle has been applied to leases ;°'' insurance policies ;^^ deeds ;''^ chattel mortgages ;^^ licenses;^* con- tractual receipts f^ bills of sale,^* etc. It also has been applied even to a judicial record. ^^ Where a third party is 'entitled to benefits growing out of a transaction which is evidenced by a writing, parol evidence is admissible to es- tablish his rights.^® § 56. Admissibility of parol evidence to prove 48. Livingston v. Stevens, 122 la. 62, 94 N. W. R. 92S ; North- ern Assur. Co. V. Chicago Mut. Bldg., etc., Assoc, 198 111. 474, 64 N. E. R. 979; O'Connell v. Kelly, 114 Mass. 97; Burns v. Thompson, 91 Ind. 146; Dickey v Grice, 110 Ga. 315. 49. Oases cited in foot-note 48. 50. Gates v. Steele, 48 Ark. 539, 4 S. W. R. S3. 51. Pittman v. Harris, 24 Tex. Civ. App. 503, 59 S. W. R. 1121. 52. Carmack v. Drum, 32 Wash. 236, 73 Pac. R. 377 ; Dickey V. Grice, supra. 53. Sohultz V. Plankinton, 141 111. 'II6. 54. Wooster v. Simonson, 20 Fed. R. 316. 55. Furbush v. Goodwin, 25 N. H. 425. 56. Gregory v. Murrell, 37 N. C. 233. 57. Den V. Clark, 10 N. J. L. 217," 18 Am. Dec. 417; Watson V. Holly, 57 Ala. 335. 58. Stowell V. Eldred, 39 Wis. 614. THE PAROL EVIDENCE RULE 509 I a reservation. — As to the admissibility of parol evidence to prove a reservation the decisions are not harmonious. Some courts hold that parol evidence is admissible to prove an oral agree- ment reserving to the grantor growing crops f^ while other courts hold the contrary.*" Some hold that parol evidence is admissible to prove an oral agreement reserving to the grantor the right to occupy the premises for a specified time after the dehvery of the deed free of rent;*^ while others hold the contrary.®^ It has been held that an oral agreement reserving to the grantor the right to dispose of the manure on the land may be shown.®^ While on the other hand, all the courts hold that parol evidence is inadmissible to prove an oral agreement reserv- ing to the grantor fixtures on the land.®* § 57. To show the object of the parties in ex- ecuting and delivering a deed. — Parol evidence is inadmissible to vary or contradict the language 59. Simanekv. Nemetz, 120 Wis. 42, 97 N. W. R. 508; Har- vey V. Million, 67 Ind. 90; Backenstoss v. Stahler's Adm., 33 Pa. St. 251, 75 Am. Dec. 592; Adams v. Watkins, 103 Mich. 431, 61 N. W. R 774. 60. Smith V. Price, 39 111. 28, 89 Am. Dec. 284; Wintermute V. Light, 46 Barb. (N. Y.) 278. 61. Hersey v. Verrill, 39 Me. 271. 62. Gilbert v. Buckeley, 5 Conn. 262, 13 Am. Dec. 57. 63. Strong v. Doyle, 110 Mass. 92. 64. Slocum V. Seymour, 36 N. J. L. ,138, 13 Am. Rep. 432; Detroit Ry. Co. v. Forbes, 30 Mich. 166. See also, note 12 Eng. Rep. 241-250. 5IO THE LAW OF EVIDENCE of a deed."^ Thus, it has been held inadmissible to prove an oral agreement obligating the grantor to pay off existing incumbrances;*® or to modify a stipulation in the deed obliging the grantee to do so;"''^ or to modify the operation of the deed.®^ On the other hand, parol evidence is admissible to show the object of the parties in executing and receiving the instrument. Thus, parol evi- dence is admissible to show that a deed was exe- cuted and delivered to secure a loan, defraud creditors, give a preference, or for any other ob- ject not apparent on its face. As said by Field, J., "The rule' which excludes parol testimony to contradict or vary a written instrument has ref- erence to the language used by the parties. That cannot be qualified or varied from its natural im- port, but must speak for itself. The rule does not forbid any inquiry into the object of the parties in executing and receiving the instrtiment. Thus, it may be shown that a deed was made to defraud creditors, or to give a preference, or to- secure a loan, or for anj^ other object not appar- ent on its face."®^ It is common practice to in- 65. Kershaw v. Kershaw, 102 III. 307; McEnery v. McEnery, 110 la. 366, 80 N. W. R. 1071; Sill v. Sill, 31 Kan. 248, 1 Pac. R. 556; Kelly v. Saltmarsh, 146 Mass. 586, 16 N. E. R. 460. 66. Desmond v. M'cNamara, 107 Wis. 126, 82 N. W. R. 701 ; Chaplin V. Baker, 124 Ind. 385, 24 N. E. R. 233. 67. Rooney v. Koenig, 80 Minn. 483, 83 N. W. R. 399. 68. Uihlein v. Mathews, 172 N. Y. 154, 64 N. E. R. 792; Dye V. Thompson, 126 Mich. 597, 85 N. W. R. 1113. 69. P«ugh V. Davis, 96 U. S. 332, 336. THE PAROL EVIDENCE RULE 5II troduce parol evidence to show that a deed ab- sokite on its face was meant by the parties to be a mortgage. As said by Sherwood, J., "The doc- trine that a deed absolute on its face may be shown to be a mortgage is old and well estab- lished."™ And it has been held that parol evi- dence is admissible to show that an absolute transfer of shares of stock, even when the, trans- fer was recorded on the books of the corpora- tion, was meant by the parties merely as a pledge or security for a loan.'^^ But parol evidence is in- admissible to prove an oral agreement to refund the purchase money in the, event of a failure of the title in the case of a quitclaim deed.'^^ § 58. Admissibility of parol evidence in suits for cancellation or reformation of documents, or for specific performance. — In suits for cancelling or reforming a document the parol evidence rule does not apply. Parol evicjence is admissible in such cases to show fraud,'^^ or mutual mistake,'''* even in cases where the statute of frauds requires that the transaction be reduced to writing.''^ And parol evidence is also admissible in suits for spe- cific performance to show that the. writing does 70. McMillan v. Bissell, 63 Mich. 66. 71. Brick V. Brick, 98 U. S. S14. 72. Putnam v. Russell, 86 Mich. 389, 49 N. W. R. 147. 73. Hicks V. Stevens, 121 111. 186, 11 N. E. R. 241; Bennett V. Mass. Mut. L. Ims. Co., 107 Tenn. 371, 64 S. W. R. 758; Barfield v. So. Side Irr. Co., Ill Cal. 118, 43 Pac. R. 406. 74. Gill V. Pe'lky, 54 Ohio St. 348, 43 N. E. R. 991 ; Kee v. Davis, 137 Cal. 4^6, 70 Pac. R. 294. 75. McLennan v. Johnston, 60 111. 306. 512 THE LAW OF EVIDENCE not express the real agreement of the parties/® It has been held, however, that in a suit for specific performance a court of equity will riot admit parol evidence to reform the instrument and then decree the execution of it after it has been reformed.''"' § 59- Weight and sufficiency of parol evidence. — As> a general rule, when parol evidence is in- troduced to vary or contradict a writing, to be effectual it must amount to more than merely a preponderance of the evidence. ''* Thus, where it is introduced to show fraud or mistake, in a suit to reform a document, the evidence must be positive and unequivocal. ''" And also where it is introduced to show that a deed absolute on its face was intended to operate as a mortgage,^" or establish a trust, either in real estate, ^^ or personal property.^^ 76. Espert v. Wilson, 190 III. 629, 60 N. E. R. 923; H«rren V. Rich, 95 N. C. SOO. n. Osborn v. Phelps, 19 Coim. 63, 48 Am. Dec. 133. 78. In re Sutoh, 201 Pa. St. 305, SO Atl. R. 943; Vignus v. O'Bannon, 118 111. 334, 8 N. E. R. 778; Jenkins v. Matth- ews, 80 Ala. 486, 2 So. R. 518. 79. Stanley v. Marshall, 206 111. 20, 69 N. E. R.-58; SaueT v. Nehls, 121 la. 184, 96 N. W. R. 759; Habbe v. Viele, 148 Ind. 116, 45 N. E. R. 783, 47 N. E. R. 1 ; Keith v. Wood- ruff, 136 Ala. 443, 34 So. R. 911. 80. Worley v. Dryden, 57 Mo. 226; Kjiowles v. Knowles, 86 111. 1 ; Wilde V. Howman, 58 Neb. 634, 79 N. W. R. 546. 81. Moore v. Wood, 100 111. 451 ; Dailey v. Dadley, 125 Mo. 96, 28 S. W. R. 330; Miller v. Miller, 100 Mich. 563, 59 ' N. W. R. 242; Braun v. First Ger. Evan. Luth. Church, 198 Pa. St. 152, 47 Atl. R. 963. 82. Allen v. Withrow, 110 U. S. 119, 3 S. Ct. 517, 28 L. Ed. 90. PART V. Witnesses. CHAPTER i: Competency. § I. Definition. — A witness, in the legal sense, is a person who gives evidence in a cause before a court. And a competent witness is a pe;rson who is legally qualified to do so. § 2. Testing the competency of a witness. — To test the competency of a witness the adverse counsel is entitled to have him examined before he is sworn.^ He may, however, bring out the fact of his incompetency on cross-examination and have the testimony expunged.^ Where a witness is competent to testify as, to some mat- ters and not as to others his testimony as to the latter should be excluded by objecting to im- proper qvvestions.* Mr. Best says, "A witness is said to bCi^ompetent to give evidence when the judge is bound, as a matter of law, to reject his testimony, either generally or on some particular subject. In all other cases, it is to be received and its credibility weighed by the jury."* 1. Seeky v. Engell, 13 N. Y. S42. 2. Loveridge v. Hill, 96 N. Y. 222; R. v. Whitehead, .L. R. 1 C. C. R. 33. 3. Beal v. Pinch, 11 N. Y. 128. 4. Best on Evid. (10th ed.), §132. See also, 26 Am. Law Rev. 821; 9 Har. La)w Rev. 1. 514 THE LAW OF EVIDENCE § 3. Incompetent witnesses at common law. — The following classes of persons were incompe- tent witnesses at the common law: (i) Parties to the record. (2) Real parties in interest al- though not parties to the record. (3) Persons wanting in capacity or understanding. (4) Per- sons who had been convicted of infamous crimes. (5) Persons whose religious belief was insuffi- cient. § 4. Same. Husband and wife. — On grounds of public policy a few other classes of persons were incompetent witnesses at common law. Thus, as an almost universal rule, a husband or wife of a party to a suit was incompetent to testify either for or against the other spouse.^ More- over, where the interests of either spouse were directly involved, and the verdict would directly conclude the party, the other spouse was an in- competent witness, although neither was a party to the suit.® In a criminal case, however, against one spouse for personal injuries to the other, the injured spouse was a competent witness.'' But 5. Hayes v. Parmalee, 79 111. 563 ; Lisman v. Early, 12 Cal. 282 ; Wilson v. Sbeppard, 28 Ala. 623 ; Seargent v. Sew- ard, 31 Vt. 509; Warner v. Press Pub. Co., 132 N. Y. 181; Hopkins v. Grimsliaw, 165 U. S. 342. 6. Craig v. Miller, 133 111. 30O; Young v. Oilman, 46 N. H. 484. 7. People V. Selring, 66 Mich. 705, 45 Am. Rep. 412; Com. V. Sapp, 90 Ky. 580, 14 S. W. R. 834, 29 Am. St. Rep. 805 (abortion by violence); Goodwin v. State, 114 Wis. 318, 90 N. W. R. 170 (assatilt with intent to kill); Hills v. COMPETENCY 515 in criminal cases generally; as well as in civil cases, neither spouse was a competent witness either for or against the other.® On the grounds of morality and decency neither spouse was a com- petent witness to testify to non-access during coverture.'' Not only were the spouses incompe- tent to give direct testimony on this point, but also as regards circumstantial evidence.-^" More- over, the death of one of the spouses did not render the other spouse competent to give evi- dence on this point. ^^ Either spouse, however, was competent to testify to the fact that a child of the wife was born before or after marriage.-'^ And on the question of the legitimacy of a child declarations and conduct of the wife,^^ as well as of her paramour,^* were admissible. Moreover, on the ground of necessity, the wife was a com- petent witness in a bastardy case to the alleged criminal intercourse.^'' Also where her husband State, 61 Neb. 589, 85 N. W. R. 836 (bigamy); Clarke v. State, 117 Ala. 1, 23 So. R. 671, 67 Am. St. Rep. 157. 8. State V. Woodrow, 58 W. Va. 527, 52 S. E. R. 545,' 112 Am. St. Rep. 1001,' 2 L. R. A. (N. S.) 862 and note; State V. Willis, 119 Mo. 485; People v. Gordon, 100 Mich. 518. See also, note 106 Am. St. Rep. 763. 9. Boykin v. Boykin, 70 N. C. 262 ; Chamberlain v. People, 23 N. Y. 85; Goodright v. Moss, 2 Cowp. 591. 10. R. V. Sourton, 5 A. & E. 180. 11. R. V. Kea, 11 East, 132. 12. Goodright v. Moss, supra. 13. Aylesford v. Peerage, 11 App. Cas. 1. 14. Burnaby v. Bailie, 42 Ch. D. 282. 15. Evans v^ State, 165 Ind. 369, 74 N. E. R.*244. See also, note 2 L. R. A. (N. S.) 619. ' . 5l6 ' THE LAW OF EVIDENCE was charged with abandonment/® bigamy/'' at- tempt to poison her/® or abortion by violence.^' But neither spouse was a competent witness where the other spouse was charged with adul- tery.^" Where one spouse was indicted for per- sonal injuries to the other spouse the injured party might be compelled to testify.^^ And where the wife was indicted for a crime, and her de- fense was coercion of her husband, she was a competent witness to testify on this point.^^ § 5. Statutes relating to competency of hus- band and wife. — Both in England and in this country statutes have been enacted which l^ave modified considerably the common-law rules re- lating to the competency of husband and wife. These statutes, however, are not at all harmon- ious. Some of them make the spouses compe- tent witnesses both for and against each other 16. State V. Brown, 67 N. C. 470. 17. United States v. BasseW, S Utah, 131, 13 Pac. R. 237; Hills V. State, 61 Neb. S89, 85 N. W. R. 836. 18. Com. V. Sapp, 90 Ky. 580, 29 Am. St. Rep. 805; People V. No'rthnip, 50 Barb (N. Y.) 147. 19. Navarro v. State, 24 Tex. App. 378; State v. Dyer,' 59 Mo. 303. 20. State v. Jones, 89 N. C. 559; People v. Hendrickson, 53 Mich. 525; Cotton v. State, 62 Ala. 121; Crawford v. State, 98 Wis. 623, 74 N. W. R. 537, 67 Am. St. Rep. 829; Bassett v. United States, 137 U. S. 496. 21. Johnson v. State, 94 Ala. 53; Thiede v. Utah, 159 U. S. 510. 22. Beyerline v.- State, 147 Ind. 125, 45 N. K R. 772. Sti also, notes 106 Am. St. Rep. 765; 27 Am. Dec. 377. COMPEtENCY 517 in particular cases.*^ While others, in a large measure at least, are declaratory of the common law.^* In a few states the statutes practicaily abolish the restrictions of the common law. In these states a husband or wife tnay testify either for or against each other, except as to privileged communications between them.^^ Some statutes provide that the husband and wife may testify for or against each other where the subject mat- ter of the action is the wife's separate estate.** And under these statutes it has been held that in an action by the wife for selling liquor to her husband, ^'^ or for slander,^^ malicious prosecution,*" or per- 23. Martin v. Derenibecker, 116 La. 495, 40 So. R. 849; Wood- ruff Hardware Co. v. Wender Blue Gem. 'Coal Co., 141 Ky. 210, 132 S. W. R. 401 ; Thomas v. State, ISS Ala. ' 125, 46 So. R. 771 ; Larson v. Carter, 14 Idaho 511, 94 Pac. R. 825; Bro'wn v. Patterson, 224 Mo. 639, 124 S. W. R. 1 ; Rivers v. State, 118 Ga. 42, 44 S. E. R. 859. 24. Schreffler v. €has«, 245 111. 395, 92 N. E. R. 272, 137 Am. St. Rep. 330; Jenkins v. Lewis,. 25 Kan. 479; Ex parte Beville, 58 Fla. 170, 50 So. R. 685, 27 L. R. A. (N. S.) 273 and note, 19 Am.. Cas. 48; Canole v. Allen, 222 Pa. St. 156, 70 Atl. R. 1053; Grabowski v. State, 126 Wis. 447, 105 N. W. R. 805 ; Storey v. Veach, 22 U. C. C. P. 164. 25. Thompson v. Wadleigh, 48 Me. 66; State v. Reynolds,, 48 S. C. 384, 26 S. E. R. 679; Richardson v. State, 103 Md. 112, 63 Atl. R. 317; Ex parte Beville, supra. 26. Grindle v.'Grindle, 240 111. 143, 88 N. E. R. 473; Hana v. Barker, 6 Colo. 303 ; Turnley v. Texas Banking Co., 54 Tex. 451. 27. Davenport v. Ryan, 81 111. 218. 28. Hawver v. Hawver, 78 111. 412. 29. Anderson v. Friend, 71 111. 475; 5l8 THE LAW OF EVIDENCE sonal injuries/" her husband- is a competent wit- ness. But at common law the husband was in- ccJjnpetent to testify in a suit concerning his wife's separate estate.*'- The statutes of the var- ious states, and the federal statute, which, render parties to a suit competent witnesses, do not ef- fect the common-law rule respecting the dis- qualification of husband and wife as regards tes- tifying for and against each other. Those stat- utes were not intended to apply to husband and wife.*^ The New YorTc Code of Civil Procedure provides that the marital relation shall not ex- clude the husband or wife from testifying where the suit is brought, prosecuted, opposed or de- fended on behalf of the other spouse.** Other statutes provide that both spouses are compe- tent to testify either for or against each other where the issue between them is the title to property.** § 6. Where husband or wife sues or is sued in a representative capacity. — When one of the spouses sues or is sued in a representative ca- pacity the other spouse is a competent witness either for or against the one that sues or is sued. 30. Rock Island v. Larkin, 136 111. App. 579. But see Martin V. Deren'becker, supra; Norfolk, etc., Ry. Co. v. Prindle, • 82 Va. 122. 31. Storrs v. Storrs, 23 Fk. 274, 2 So. R. 368; Wilson v. Shep- pard, 28 Ala. .623; Gal-way v. Fullerton, 17 N. J. Eq. 389. 32. Lucas v. Brooks, 18 Wall. (U. S.) 436. 33. § 828. 34. Dowling V. Bowling, 116 Midh. 346, 74 N. W. R. 523. COMPETENCY 519 Thus, where a father sues on behalf of his child the plaintiff's wife is a competent witness. ^^ This rule is also applicable where one of the spouses sues or is sued as administrator or administra- trix, executor or executrix.** Where the husband is sued^for necessaries furnished his wife the lat- ter is a competent witness." § 7. Suits for divorce, criminal conversation or adultery. — In a suit for an absolute divorce on the ground of adultery the defendant is a com- petent witness.*^ In an action for criminal con- versation it has been held that the; plaintifif's wife is not a competent witness in his behalf; and also that he is not a competent witness to testify to his wife's adultery.*® But where the husband is indicted for conspiring to have his wife confined in an insane asylum the latter is a competent witness.*" On the other hand, she is not a com- petent witness against him to prove his fraud. *^ It has been held that in a prosecution for adultery 35. Lapleine v. Morgan, etc., Ry., etc., Co., 40 La. Ann. 661, 4 So. R. 875, 1 L. R. A. 378. 36. Gordon v. Sullivan, 116 Wis. 543, 93 N. W. R. 457; Van Fleet V. Stout, 44 Kan. 523, 24 Pac. R. 960. 37. Morganroth v. Spencer, 124 Wis. 564, 102 N. W. R. 1086. 38. Stevens v. Stevens, 54 Huri (N. Y.) 490, 27 N. Y. State R. 602, 8 N. Y. Supp. 47. 39. Reynolds v. Schaffer, 91 Mich. 494; Cornelius v. H^anbay, 150 Pa. St. 359. Contra, Smith v. Merrill, 75 Wis. 461, 44 N. W. R. 759; Smith v. O'Brien, 127 N. Y. 684, 28 N. E. R. 256. 40. Com. v. Spink, 137 Pa. St. 255. 41. Cornelius v. Hanbay, supra. 520 THE LAW OF EVIDENCE the ofifehse may not be proved by the husband or vvife of the person with whom the -defendant is alleged to have committed the ofiEense.*^ The contrary has been held, however, by several courts.*^ . But the spouse of the person with whom the defendant is alleged to have commit- ted the offense, is a competent witness to testify to his or her marriage to that person.** Where the defendant is sued for damages for alienating the affections of the spouse of the plaintiff, under some statutes both spoUses are competent wit- nesses.*^ But in the .absence of such statutes the contrary has been held.*® § 8. Joint action by or against one spouse and other persons. — In actions by or against one spouse and . other persons jointly the other spouse is an incompetent witness.*''^ But where 42. People v. Fowkr, 104 Mich. 449, 62 N. W. R. 572; How- ard V. State, 94 Ga. 587, 20 S. E. R. 426; State v. Welch, 26 Me. 30, 45 Am. Dec. 94. 43. State v. West, 118 Wis. 469, 95 N. W. R. 521, 99 Am. St. -'■ -Rep.' 1002; Pruet v: State, 141 Ala, 69, 37 So. R. 343; State V. Wiseman, 130 N. C. 726, 41 S. E. R. 884. 44. People V. Ishafn, 109 Mich. 72,. 67 N. W. R. 819. 45. Coy V. Humphreys, 142 Mo. App. 92, 125 S. W. R. 877 j Roesner v. Daf rah, 65 Kan. 599, 70 Pac. R. 597. 46. Frititii v. Caslini, 66 Vt. 273, 29 Atl. R. 252, 44 Am. St. Rep. 843 ; Rice v. Rice, 104 Mich. 371, 62 N. W. R. 833. 47. Gijlespie v. People, 176 III. 238, 52 N. E. R. 250; Holley ' V. State, 105 Ala. 100, 17 So. R. 102; Am v. Mathews, 39- Kan. 272,. 18 Pac. R. 65; Hemiing v. Stevenson, 118 Ky. 318, 80 S. W. R. 1135; Bartlet v. Qough, 94 Wis. 196, 68 N. W. R. 875; Cook v. Neely, 143 Mo. Aipp. 632,, 128, S. W. R. 233. COMPETENCY 521 the action has been dismissed as to the spouse who is a codefendaht with the others/* or where judgment has been rendered as to him or her, the other spouse is a competent witness for or against the other co-defendants.** In a criminal case, however, where one, of the spouses is a co- defendant and the defendants are tried jointly the other spouse is an incompetent witness either for or against' any of the defendants.^" But the mere fact that one of the spouses is a particeps crimininis does not render the other spouse an in- competent witness.'^ § 9. One spouse a subscribing witness to a will. — Where one spouse is a subscribing witness to a will in which the other spouse is a legatee the former is a competent witness in support of the validity of the will, even when a statute ex- pressly provides that the spouses are incompe- tent to testify for or against each other.^^ It has been held, however, that, in a proceeding to con- test the validity of a will, the spouse of an heir 48. Van Valkenburg v. Lynde (Kan.), 66 Pac. R. 994; Rios V. State, 39 Tex. Cr. R. 67S, 47 S. W. R. 987. 49. Singer Mfg. Co. v. Howes (Ky.), 49 S. W. R. 963, 20 Ky. L. Rep. 1607. 50. Graff v. Peopk, 208 111 312, 70 N. E. R. 209; Smith v. Com., 90 Va.' 759, 19 S. E. R. 843; Rivers v. State, 118 Ga. 42, 44 S. E. R. 8S9; Newman v. State, 160 Ala, 102, 49 So. 786. 51. Burns v. State (Tex.), 66 S. W. R. 303. 52. Lanning v. Gay, 70 Kan. 353, 78 Paic. R. 810, 85 Pac R. 407. 522 THE LAW OF EVIDENCE of the testator is an incompetent witness where the other spouse is a party to the suit.^* § 10. One spouse agent of the other. — Where a husband or wife acts as agent of the other sponse he or she is a competent witness.^* And the death of the principal in such case does not render the agent incompetent.^^ But the death of the third party, with whom the agent deals renders both husband and wife incompetent.^® The fact that a tort is committed in the wife's presence against her husband in his absence does not render the wife a competent witness. ^'^ The rule which makes one spouse a competent wit- ness for the other on the ground of agency is confined to business transactions with third per- sons.^^ But where one spouse assumes to act as the agent of the other spouse without authority the rule does not apply.^" The mere signing of her husband's name at his request owing to his 53. Henning v. Stevenson, 118 Ky. 318, 80 S. W. R. 1135, 26 Ky. L. Rep. 159. 54. Green v. MoCracken, 64 Kan. 330, 67 Pac. R. 857 ; Arm- strong V. Crump, 25 Okla. 452, 106 Pac. R. 855 ; Pain v. Farson, 179 III. 185, 53 N. E. R. 579; Turner v. Overall, 172 Mo. 271, 72 S. W. R. 644. 55. Reed v. Crissej', 63 Mo. App. 184; Robnet v. Robnet, 43 111. App. 191. 56. Sanborn v. Cole, 63 Vt. 590, 22 Atl. 716, 14 L. R. A. 208. 57. Bunker v. Bennett, 103 Mass. 516. 58. Taylor v. McClintock, 87 Ark. 243, 112 S. W. R. 405; Orchard v. Collier, 171 Mo. 300, 71 S. W. R. 677. 59. Case v. Colter, 66 Ind. 336. ' COMPETENCY 523 illiteracy does not render her a competent wit- ness."" , § II. Indictment of one spouse for injury to the other spouse. — Where one spouse is indicted for violence to the other spouse the injured party is a competent witness.®^ The prosecution, how- ever, may not be compelled to call the injured spouse as a witness, but in case of refusal the defendant may do so.®^ Where the husband is on trial for an indecent assault on. his daughter the wife is an incompetent witness.®^ Where a divorced husband is on trial for attempting to poison his wife during coverture the divorced wife is a competent witness.®* And where the husband is on trial for forcible abduction and marriage the wife is a competent witness. *° § 12. Statutory modifications. — Both in .Eng- land and in this country statutes have been pass- ed enlarging the scope of the competency of hus- band and vvife to testify for and against each other. These statutes, however, are not at all harmonious. "" Hence the necessity of examining the laws of the forum in regard to this question. Under the English statutes both spouses are 60. Fishback v. Harrison, 137 Mo. App. 664, 119 S. W. R. 465. 61. Miller v. State, 78 Neb. 64S, 111 N. W. R. 637; Murray V. State, 48 Tex. Cr. R. 141, 86 S. W. R. 1024. 62. People v. Fitzpatrick, S Park. Cr. R. (N. Y.) 26. 63. People v. WestbrOoik, 94, Mich. 629, 54 N. W. R. 486. 64. Com. V. Sapp, 90 Ky. 580. 65. Com. V. Hayden, 163 Mass. 453 ; Walker v. State, 34 Fla. 167; Hanselman v. Dovel, 102 Mich.. SOS. . 66. Greenkaf on Evid., § 334. 524 THE LAW OF EVIDENCE generally, competent witnesses for or against each other in civil cases. Neither, however, may disclose confidentiaL communications made be- tween them .during coverture.®'^ This rule also obtains in this country. In a few jurisdictions, however, such communications are receivable in evidence provided the other spouse consents.^* The California Code provides as follows : "A husband cannot be examined for or against his wife, without her consent; nor can either, during the marriage or afterwards, be, without the con- sent of the other, examined as to any communi- cation made by one to the other during the mar- riage; but this exception does not apply to a civil action or a proceeding by one against the other ; nor to a criminal action or proceeding for a crime committed by one against the other."*^ This statute has been substantially adopted by a number of states. In the federal courts the laws of the state in which the court is held are applicable in civil cases.'^" Biit the federal stat- ute upon this point has been held not to apply in criminal cases.''^ § 13. Persons lacking in understanding. — To be a competent witness a person must have suf- 67. Taylor on Evid. (10th ed.), §1352. 68. Eatoii v. Knowles, 61 Mich. 62S ; Wolford v. Farnham, 44 Minn. 159. ' 69. Cal. Code Civ. Proc, § 1881. ' 70. U. S. Rev. Stat, §858, U. S. Comp. Stat. (1901) 659; Connecticut Ins. Co. v. Trust Co., 112 U. S. 250. 71. Logan V. United States, 144 U. S. 263. COMPETENCY 525 ficient understanding. A person may lack in this respect because of insanity, idiocy, intoxica- tion or youthfulness. An insane person, how- ever, who realizes the nature arid obligation of an oath and has sufificient understanding to ob- serve accurately and state correctly What he ob- serves is a competent witness.''^ If he lacks uii- derstanding in either of these respects he is in- competent.'^^ As said by Campbell, C. J., "The proper test must always be, does the lunatic un- derstand what he is saying, and does he under-, stand the obligation of an oath?"''* And as said by Field, J., "The general rule, therefore, is that a lunatic or person aflfected with insanity is ad- missible as a witness if he have sufficient under- standing to apprehend the obligation of an oath, and to'be capable of giving a correct account of the matters which he has seen or heard in refer- ence to the questions at issue."''' See also, page 636, § 14. ; ■ ' § 14 Idiocy. — Insanity is a derangement of the mifid ; whereas idiocy is a defect of mind. An idiot is a person who has never had a mind. From 72. Tucker v. Shaw, 158 111. 326, 41 N. E. R. 914; District of Columbia v. Amies, 107 U. S. 519, 521, 522. 73. Covington v. O'Meara, 133 Ky. 762, 119 S. W. R. 187; State V. Howard, 62 Minn. 474, 65 N. W. R. 63 ; District of Columbia v. Arms, supra. ' 74. Reg. V. Hill, 5 Cox Cr. Cas. 259. 75. District of Columbia v. Armes, supra; Sarbach v. Jones, 20 Kan. 497 (witness who was adjudged restored to sanity competent to testify to occurrences during guardianship). 526 THE LAW OF EVIDENCE birth he has never had "the least glimmering of reason, and is utterly destitute of all those in- tellectual faculties by which man, in general, is so eminently and peculiarly distinguished."^^ He is hopelessly incompetent to act as a witness. But it is said that "The testim,ony of either an idiot" or a lunatic may, however, be received, if he appears to the court to have sufficient under- standing to comprehend the obligation of an oath, and to be able to give correct answers to the questions put."''^ An idiot, however, has no mind to comprehend the obligation of an oath, and therefore is not a competent witness in any case. § 15. Competency of deaf and dumb persons. ^-A deaf and dumb person was formerly presum- ed an idiot and therefore an incompetent wit- ness.^® This view, however, no longer obtains. He is a competent witness, and may communi- cate his knowledge either by writing or by signs. The mode of doing so rests in the dis- cretion of the trial court. '^^ For further dis- cussion of this topic see page 631, § 9. § 16. Competency of drunken persons. — Drunken persons are not necessarily incompe- tent witnesses. But it is said that "A person in 76. Coleman v. Com., 25 Gratt. (Va.) 865, 18 Am. Rep. 711. 77. Jones on Evid., § 719 (737). 78. 1 Hale P. C. 34. See note, 24 L. R. A. 126. 79. The State v. Howard, 118 Mo. 127, 143, 144, 24 S. W. R. 41. See also, 5 Am. and Eng. Encyc. of Law 119, and cases cited; Taylor on Evid. (10th ed.), § 1376, and note. COMPETENCY 527 a state of intoxication is incompetent."*" This statement, however, is altogether too broad. A person who is so excessively intoxicated as to be incapable of understanding the obligation of an oath, or of giving a correct account of the mat- teirs he has seen or heard in reference to the questions at issue, is an incompetent witness and should be excluded.*^ But the mere fact t^at a person is intoxicated does not render him an incompetent witness.*^ Nor does the fact of hab- itual drunkness.*^ § 17. Competency of persons under the influ- ence of drugs. — The fact that a person is under the influence of a stupifying drug does not. neces- sarily render him an incompetent witness.** It depends upon the excessiveness of his stupidity. As in the case of the use of alcoholic liquors, the question is one which rests in the sound discre-' tior» of the trial court. It has been held that a person may be a competent witriess who at the time of the occurrence was so thoroughly stupi- 80. Bradner on Evid. (2d. ed.), § 7, p. 138. 81.' Hartford v. Palmer, 16 Johns. (N. Y.) 143. 82. Eskri'dge v. State, 2.5 Ala. 33; State v. Sejours, 113 La. 676, 37 So. R. S99; Meyers v. State, 37 Tex. Cr. R. 208, 39 S. W- R- 111; Cannady v. Lynch, 27 Minn. 435, 8 N. W. R. 164.. 83. Gebhart v. Shindle, IS Serg. & R. (Pa.) 23S; Thayer v. Boyle, 30 Me. 475. 84. State v. White, 10 Wash. 611, 39 Pac. R. 160, 41 Pac. R. 442; Pones v. State, 43 Tex. Cr. R. 201, 63 S. W. R. 1021. 528 THE LAW OF EVIDENCE fied by drugs that he did not realize uhtil after- ward what had happened.**^ • § 18. Competency of imbeciles. — The compe- tency of imbeciles to act as witnesses is a ques- tion upon which the decisions are not harmon- ious. Thus, it has been held in a prosecution for rape upon an imbecile that the victim was a com- peteht Avitness against the defendant, although her imbecility of mind prevented effectual resis- tance.^® While, on the other hand, it has been held that the prosecutrix was an incompetent witness where the indictment alleged that she was so mentally diseased as to render her incap- able of successfully opposing the act of carnal knowledge.®"^ §19. Competency of children. — At common law there is no fixed age of demarcation between, competency and incompetency.^^ The test is in- telligence.*^ The question is, has the child suffi- cient intelligence to grasp the facts of the case and to state them correctly, and to realize the 85. Pones v. State, supra. 86. State v. Crouch, 130 la. 478, 107 N. W. R. 173. See also. State V. Simes, 12 Idaho 310, 8S Pac. R. 914, 9 Ann. Cas. 1216 and note. 87. Lee v. State, 43 Tex. Cr. R. 28S, 64 S. W. R. 1047. 88. Shannon v. Siwanson, 208 111. 52, 69 N. E. R. 869; State V. Tolla, 72 N. J. L. 515, 62 Atl. R. 675, 3 L. fe. A. N. S. 523; Wheeler v. Umted States, 159 U. S. 523, 524 (boy nearly 51 years old competent). 89. State, v. Ring, 117 la. 484, 91 N. W. R. 768; Teatherstone V. People, 194 111. 325, 62 N. E. R. 684; Merchant v. Coin., 140 Kv. 12, 130 S. W. R. 793. COMPETENCY ' 529 sanctity of an oath.®" As in other cases of the competency of witnesses, the question is one which rests in the sound discretion of the court.®^ For further discussion of this topic see page 633, § 12. § 20. Competency of persons not of the Cau- casian race. — Under the modern rule, race or color does not render a person an incompetent witness.®^ Formerly, restrictions were placed upon the competency of negroes and mulat- toes.®^ And in California upon the competency of Chinese.'* But these restrictions have been abrogated by statute. Today, negroes,®^ Chi- nese,®* Japanese®' and Indians®^ are competent witnesses. '90. Com. V. Ramage, 177 Mass. 349, 58 N. E. R. 1078; Clinton V. State, S3 Fla. 98, 43 So. R. 312, 12 Ann. Cas. ISO; State V. Douglas, S3 Kan. 669, 37 Pac. R. 172 ; Com. v. Wilson, 186 Pa. St. 1, 40 Atl. R. 283; Bright v. Com., 120 Ky. 298, 86 S. W. R. 527, 117 Am. St. Rep. 590; Walker v. State, 134 Ala. 86, 32 So. R. 703. 91. State V. Headley, 224 Mo. 177, 123 S. W. R. 577; State V. Gregory, 14« la. 152, 126 N. W. R. 1109; Crosby v. State, 93 Ark. 156, 124 S. W. R. 781, 137 Am. St. Rep. 80. 92. State v. Underwood, 63 N.j C. 98 ; Clarke v. State, 35 Ga. 75. 93. Grady v. State, 11 Ga. 253; Smith v. Oliver, 31 Ala. 39;- Jordon v. Smith, 14 Ohio 199; Graham v. Crockett, 18 Ind. 119. 94. People v. McGuire, 45. Cal. 56. 95. Kelley v. State, 25 Ark. 392. 96. State v. Lu Sing, 34 Mont. 31, 85 Pac. R. 521, 9 Ann. Cas. 344. 97. Pumphrey v. State, 84 Neb. 636, 122 N. W. R. 19, 23 L. R. A. N. S. 1023, 18 Ann. Cas. 979 and note. 530 THE, LAW OF EVIDENCE § 21 Lack of religious belief. — At the English common law an atheist was an incompetent wit- ness.®® And according to Loi'd Coke an infidel was an incompetent witness.^"" Lord Coke's rule, however, has be^ severely criticised. As said by Scates, C. J., "In early times Lord Coke laid down the rule as excluding all not Chris- tians — a rule as narrow, bigoted and inhuman as the spirit of fanatical intolerence and persecu- tion which disgraced his age and country."'^ This narrow rule soon became obsolete. The leading English case on the subject is Omichund v. Bar- ker.^ In this case the court held that natives of the East Indies professing the Gentoo religion and belief in a God and in future punishment for wrongdoing were competent witnesses in an English court. It has been held in this country that a believer in God, but who did not believe in a future state of rewards and punishments based upon conduct while on earth was an in- competent witness.^ But many courts have held that a person who believes in the existence of a Supreme Being, and future rewards and pun- ishments even on this earth, is a competent wit- 98. 22 Cyc. lis (Indians). 99. Atwood V. Welton, 7 Conn. 66; Smith v. Coffin, 18 Me. 1S7; Scott V. Hooper, 14 Vt S3S. 100. 7 Coke, 17 b. 1. Central Military Tract. Ry. Co. v. Rockafellow, 17 111. 541. 2. Willes 538, 1 Atk. 21, 49 (1744). 3. Curtiss V. Strong, 4 Day (Conn.) 51, 4 Am. Dec. 179. / COMPETENCY 531 ness.* Moreover, by constitutional or statutory provisions in many states the requirement of re- ligious belief has been eliminated altogether.^ See also, page 632, § 10. § 22. Oath or affirmation still essential. — Al- though the religious test has been abolished in many jurisdictions, an oath, or its equivalent, is still essential in all jurisdictions.® The mode which the witness deems most obligatory should be adopted. As said by Lord Stairs, "It is the duty of judges in taking the oaths of witnesses to do it in those forms that will ;nost touch the conscience of the swearers according to their persuasion and custom ; and though Quakers and fanatics deviating from the common senti- ments of mankind refuse to give a formal oath, yet if they do that which is materially the same, it is materially an oath."^ Thus, a Quaker may qualify by solemhl)'- asserting that he will speak 4. Blair v. Seaver, 26 Pa. St. 274; Beeson v. Moore, 132 Ala. 391, 31 So. R. 4S6; Brock v. Milligan, 10 Ohio 121; Hun- scom V. Himscom, IS Mass. 184; Shaw v. Moore, 49 N. C. 25. 5. State V. Williams, HI La. 179, 35 ,So. R. SOS; State v. King, 117 la. 484, 91 N. W. R. 768; Hronek v. People, 134 111. 139, 24 N. E. R. 861, 23 Am. St. Rep. 652, 8 L. R. A. 837; Dickinson v. Beal, 10 Kan. App. 233, 62 Pac. R. 724; People v. Copsey, 71 Cal. 548; Bush v. Com., 80 Ky. 244; Clinton v. State, 53 Fla. 98, 43 So. R. 312, 12 Ann. Cas. 150 and note. 6. Priest v. State, 10 Neb. 393. 7. Institutes of the Laws of Scotland 692. 532 THE LAW OF EVIDENCE the truth f a Chinese by killing a cock, or break- ing a saucer, and declaring that, if he speaks falsely, his soul will be similiarly dealt with;® a Jew by taking the oath on the Pentateuch with covered head;" a Mohametan by taking the oath on the Koran ;^^ a Roman Catholic by tak- ing the oath on the Holy EvangeHsts ;^^ a Gen- too by touching the foot of a Brahmin (or priest).^* Willfully testifying falsely under any of the foregoing circumstances constitutes per- jury.^* § 23. Persons convicted of infamous crimes. — At common law a person who had been convict- ed of an infamous crime, and who had* not been pardoned, was an incompetent witness.^® Infam- ous crimes comprise treason, felonies and those crimes that come within the scope of crimen falsi}^ The meaning of the term crimen falsi is some- what vague. As said by Mr. Bradner, "the mean- ing of the term crimeri falsi, in our law, is nowhere 8. United States v. Coolridge, 2 Gall. (U. S.) 364; Atkinson V. Everrett, Co,-«^. 382. 9. R. V. Enthebman, Car. & M. 248. 10. Omychund v. Barker, supra. 11. Morgan's Case, 1 Leach Cr. Ca's. 54. 12. Com. V. Buzzell, 16 Pick. (Mass.) 153. 13. Omychund v. Barker, supra. 14. Sells V. Hoare, 3 Brod. & B. 232. See also mote, 92 Awi. Dec. 473. 15. Com. V. Gonham, 99 Mass. 420; State v. Clark, 60 Kan. 450, 56 Pac. R. 767; Taylor v. State, 62, Ala. 164; State V. Grant, 79 Mo. 113, 49 Am. Rep. 218. 16. United States v. Sims, 161 Fed. R. 1008. COMPETENCV 533 laid yown with precision."^'^ n has been held that a Crime to come within the term must not only contain the element of falsehood, but also tend to obstruct justice.^^ Boggs, J., says, "Crimen falsi, according to the better opinion, does not include all offenses which involve a ■ charge of untruthfulness, but only such as injuriously af- fect the administration of justice, such as per- jury, subordination of perjury, supression of tes- timony by bribery or conspiracy to procure the absence of a witness, or to accuse one wrong- fully of a crime, or barratry, or the like."^® It has been held that a person who has been convicted of burglary;^" arson ;^^ rape;^^ lar- ceny ;^^ forgery;^* or receiving stolen goods,^' is an incompetent witness at common law. On the other hand, it has been held that a person who has been convicted of keeping a bawdy house ;^® illegally selling intoxicating liquors ;^'^ 17. Bradner on Evid. 140. 18. United States v. Sims, supra. 19. Martzenbaugh v. The People, 194 111. 108, 113. See also, 16 Am. & Eng. Ency. of Law (2d ed.) 246, 247. 20. People v. Park, 41 N. Y. 21. 21. Harrison v. State, 55 Ala. 239. 22. State v. Turner, Houst. Cr. Cas. (Del.) 76. 23. Com. V. Keith, 8 Mete. (Mass.) 531 ; Taylor v.' State, 62 Ala. 164. 24. Webster v. Mann, 56 Tex. 119, 42 Am. Rep. 688. 25. Gom. V. Rogers, 7 Mete. (Mass.) 500, 41 Am. Dec. 458. Contra, Com. v. Murphy, 3 Pa. L. J. 290. 26. Deer v. State, 41 Mo. 348. 27. Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. R. 1054. 534 THE LAW OF EVIDENCE illegally disposing of mortgaged crops f^ ob- taining goods nnder false pretenses ;^^ embezzle- ment f° violating a municipal ordinance f^ or ob- structing railroad tracks,*^ is not thereby ren- dered an incompetent witness at common law. It has been held that testimony given at a for- mer trial by a person who has since been con- victed of an infamous crime is not admissible.^* The mere fact that a person had confessed to the commission, of an infamous crime did not render him an incompetent witness at common law. An actual conviction was essential. He must have been .adjudged guilty of an infamous crime by a court of competent jurisdiction.** A verdict of guilty was not in itself sufficient. It must have been followed by a judgment.*' § 24. Same. Conviction in a sister state. — The fact that a person had been convicted of an infamous crime in a sister state, or in a foreign country, did not render him an incompetent wit- 28. State v. Green, 48 S. C. 136, 26 S. E. R. 234. 29. Utley v. Merrick, 11 Mete. (Mass.) 302. ' 30. Planters', etc., Ins. Co. v. Tunstall, 72 Ala. 142. 31. Burns v. Campbell, 71 Ala. 271. 32. Clifton V. State, 73 Ala. 473; Com. v. Dame, 8 Cus'h. (Mass.') 384. 33. Le Baron v. Crombie, 14 Mass. 234. 34. Jones v. State, 32 Tex. Criin. Rep. 13S ; Blaufus v. People, 69 N. Y. 107. 35. Fay v. Harlan, 128 Mass. 244; Owen v. State, 86 Ark. 317, 111 S.'W. R. 466; Deckard v. State, S7 Tex. Cr. Rep. 359, 123 S. W. R. 417; Faunce v. People, SI 111. 311. COMPETENCY 535 ness at common law.'" As the disqualification was of a penal nature it was strictly co'hstrued.*'' But a person who had been convicted of an in- famous crime in a state court was not compe- tent to testify in a federal court within the state.'" The fact that a witness has been convicted of a crime in any jurisdiction may be shown where ' the purpose in introducing the testimony is to impeach his credibility.'^ And the testimony in such case may relate to his conviction of any crime.*" , § 25. Same. Mode of proving conviction. — At common law the only mode of proving the con- viction is by the original record or a duly certi- fied copy thereof.*^ Oral evidence of the fact is inadmissible. And even an admission by the witness on his cross-examination is not suffi- 36. Logan v. United States, 144 U. S. 263 ; Staite v. Landrum, 127 Mo. App. 6S3, 106 S. W. R. 1111; Com. v. Green, 17 Mass. Sis. 37. Campbell v. State, 23 Ala. 44; National Trust Co. v. Glea- son, 77 N. Y. 400, 33 Am. Rep. 632. 38. United States v. Hall, 53 Fed. R. 3S2. 39. Com. V. Knapp, 9 Pick. (Mass.) 496. 40. Cheatham v. State, 59 Ala. 40 (violating, a city ordinance) ; Utley V. Merrick, 11 Mete. (Mass.) 302 (false pretenses) ; Little V. Gibson, 39 N. H. SOS (adultery) ; Deer v. State, 14 Mo. 348 (keeping a bawdy house) ; HoUoway v. Com., 11 Bush. (Ky.) 344 (dealing faro) ; Schuylkill v. Copeley, 67 Pa. St. 386 (embezzlement) ; Gage v. Eddy, 167 I'll. 108. 41. Com. V. Gallagher, 126 Mass. 54 ; Johnson v. State, 48 Ga. 116. 536 THE LAW OF EVIDENCE cient*^ By statutory provisions, however, in some states, including Illinois, conviction may be shown by, oral testimony, including admis- sions of the witness on his cross-examination.*^ And in the case of the cross-examination the party who cross-examines the witness is not concluded by his answers. § 26. Effect of a pardon or a reversal of the judgment. — The effect of a pardon, or a reversal of the judgment, is to remove the disability.** Moreover, it is immaterial that the party ac- quires knowledge of the facts, concerning which he is called upon to testify, after his conviction and before the pardon is granted, or the judgment reversed.*^ To remove the disability the pardon must be absolute.*® An act of executive clemency which merely restores citizenship does not re- move the disability of incompetency to act as a witness.*^ Nor does a mere remission of the penalty.*^ Pending an appeal from the convic- 42. Vance v. State, 70 Ark. 272, 68 S. W. R. 37; Boyd v. State, 94 Tenin. 505, 29 S. W. R. 901. 43. Gage v. Eddy, supra. 44. Yarborough v. State, 41 Ala. 405 ; Hester v. Com., 85 Pa. St. 154; Singleton v. State, 38 Fla. 297, 21 So. R. 21, S6 Am. St. Rep. 177, 34 L. R. A. 251 ; State v. Kelleher, 224 Mo. 145, 123 S. W. R. 551, 19 Ann. Cas. 1270; Boyd v. United States, 142 U. S. 450. 45. Thornton v. State, 20 Tex. App. 519. 46. McGee v. State, 29 Tex. App. 596. 47. People V. Bowen, 43 Cal. 439, 13 Am. Rep. 148. 48. State v. Kirschner, 23 Mo. App. 349; Perkins v. Stevens, 24 Pick. (Mass.) 277. COMPETENCY 537 tion the disqualification continues.*® Some ■courts, however, hold the contrary.'"* § 27. Effect of serving tout the sentence. — Whether serving out the sentence removes the disability or not is a question upon which the decisions are not harmonious. Mr. Jones says, "The weight of authority seems to hold that the disability is removed in this manner, but there are authorities that sanction the contrary view."°^ On the other hand, it is said that "At common law the fact that the witness has served the full term of his sentence does not restore him to competency ; but under some statutes one who has been fully punished — that is, who has served his sentence or paid his fine — is re- stored to competency."^^ In Texas, Virginia, Pennsylvania and Maryland it has been held that serving out the sentence removes the disabil- ity j^s while in Louisiana it has beeii held that it does not.^* 49. State v. Harris, 22 Wash. 57, 60 Pac. R. S8; Ritter v. Democratic Press Co., 68 Mo. 458. 50. Stanley v. State, 39 Tex. Cr. Rep. 482, 46 S. W. R. 645. 51. Jones on Eviidence, § 718 (736). 52., 40 Cyc. 2208. 53. Carr v. Smith, 19 Tex. App. 635, 53 Am. Dec. 395 ; Quillin V. Com., 105 Va. 874, 54 S. E. R. 333 (in tliis case «he witness had not been fully punished) ; United States v. Hughes, 175 Fed. R. 238 (under Penn. stat.) ; Cole v. Cole, 1 Harr. & J. (Md.) 572. See also. United States V. Hall, 53 Fed. R. 352. , I 54. State v. Benoid, 16 La. Ann. 273. See also. United States V. Brown, 4 Cranch C. C. 607, 24 Fed. Cas. No. 14, 661. 538 THE LAW OF EVIDENCE Where the disability is imposed by statute an absolvite pardon does not remove the disability.^® § 28. Statutory modifications and abrogations. — In. most of the , jurisdictions of this country the disqualification caused by conviction of an infamous crime has been abrogated by statute ; while in other jurisdictions it has been consid- erably modified."^ As a general rule, however, conviction may be shown where the purpose is to impeach the credibility of the witness.''' § 29. Parties to the record.-^At the English common law a party to an action at law or a suit in equity was generally held incompetent to tes- tify.'^ The chief basis of, the rule was interest of the party in the outcome of the trial. A mere nominal party, with no pecuniary interest in the case, and who was under no liability for costs, was held competent to testify.'® But the mere 55. Evans v. State, 7 Baxt. (Tenn.) 12; Foreman v. Baldwin, 24 111. 298. 56. Stone v. State, 118 Ga. 705, 45 S. E. R. 630, 98 Am. St. Rep. 145; State v. Myers, 198 Mo. 225, 94 S. W. R. 242; Wynne v. State, 155 Ala. 99, 46 So. R. 459; Dotterer v. State, 172 Ind. 357, 88 N. E. R. 689, 30 L. R. A. N. S. 846; State v. Dalton, 20 R. I. 114, 37 Atl. R. 673; Wells V. Territory, IS Okl. 195, 81 Pac. R. 425 : Hopt v. People, 110 U. S. 574. 57. People V. Chapleau, 121 N. Y. 266. 58. Fernn v. Granger, 3 Campb. 177; Binney v. Merchant, 6 Mass. 190; Johnson v. Cox, 12 Ind. 362; Norris v. John- ston, 5 Pa. St. 287; Lucas v. Spencer, 27 111. 15; White v. Dow, 23 Vt. 300. 59. Hale v. Meegan, 39 Mo. 272; Talbot v. Talbot, 23 N. Y. 17; Paine v. Tilden, 20 Vt. 554; Rice v. Rice, 108 111. 199. COMPETENCY 539 fact that he would be liable for costs if the judg- ment should be adverse to him rendered him in- competent.®" While the application of the rule may have been somewhat less rigid in courts of chancery than in courts of law,"^ yet, generally speaking, it was applied in both classes of courts. As said by Walkei:, C. J., "The practice, however, in a court of chancery has never authorized the complainant to testify in his own behalf any more than at law."®^ On the other hand, one of the familiar rules of chancery procedure is that an answer that is strictly responsive to the bill is treated as evidence in the case.®^ Moreover, as said by Mr. Best, "when an issue was directed from a court of chancery to be tried in a court of law it was frequently made part of the order tha,t the plaintiff or defendant should be exam- ined as a witness."®* § 30. Same. Exceptions to the rule. — On the ground of necessity there were several well rec- ognized exceptions to the rule that a party to the record was an incompetent witness. Thus, where a party to the record was the only person who^had knowledge of certain preliminary facts. Contra, Canty v. Sumter, 2 Bay (S. C.) 93; Sears v. Dill- ingham, 12 Mass. 358.' 60. Whiitinore v. Wilks, 3 Car. & P. 364; Rex. v. St. Mary Mary Magdalen, 3 East 7. 61. Fooite V. Silsby, 3 Blatch. (U. S.) S07. 62. Mixell v. Lutz, 34 111. 382, 388. 63. Clark V. Van Riemsdyck, 9 Cranch (U. S.) 1S3. - 64. Best on Evid. (10th ed.), § 172. 540 THE LAW OF EVIDENCE such as the death of subscribing witnesses,®^ the loss of documents,®® notice to produce centain documents,*^ etc., he was a competent witness to testify to such facts. Again, in actions against innkeepers and common carriers for the loss of baggage caused by fraudulent misconduct, or even negligence, of the defendant, the owner was a. competent witness to prove his loss, provided no other evidence of the fact was obtainable.®^ Similarly, in actions for breach of trust, includ- ing embezzlement, the plaintiff was a competent witness to prove his loss where no other satis- factory evidence of this fact was obtainable.®^ Moreover, the exception was extended to cases where, on the ground of public necessity, it was essential to allow a party to the record to testify in the case in order to secure the due admiijis- tration of justice.'"' Another exception to the rule Avas a party to the record could voluntarily testify on behalf of his adversary, but he could 65. Moore v. Maxwell, 18 Ark. 469; Jackson v. Davis, S Cow. (N. Y.) 123, 15 Am. Dec. 4S1. 66. Page v. Page, IS Pick. (Mass.) 374; Patterson v. Winn, S Peters, (U. S.) 233. 67. Jordan v. Cooper, 3 Serg. & R. (Pa.) 564. 68. Clarke v. Spence, 10 Watts (Pa.) 33S; Adams Exp. Co. V. Haynes, 42 111. 90; Harlow v. Fitchburg Ry. Co., 8 Gray (Mass.) 237. 69. United Stajtes v. Clark, 96 U. S. 41 ; Herman v. Drink- water, 1 Me. 27; Pettigrew v. Barnnm, 11 Md. 434, 69 Am. Dec. 212. 70. United States v. Murphy, 16 Peters (U^ S.) 203. COMPETENCY 54I riot be compelled to do so.''^^ On the other hand, where there were several plaintiffs or several de- fendants one of them could not testify on behalf of the adversary without the consent of his co- plaintiffs or co-defendants. ''* In a criminal case the defendant was not a competent witness in his own behalf/^ nor could he testify for or against a co-defendant,''* unless the prosecution against himself had been terminated.^" § 31. Same. Statutory provisions. — By statu- tory provisions generally, both in England and in this country, parties to the record are made competent witnesses. In some classes of cases, however, a party to the record is an incompetent witness, based, however, upon considerations other than the mere fact that he is a party to the , record. These classes of cases are discussed in succeeding sections of this chapter. § 32. Incompetency based upon the ground of pecuniary or proprietary interest. — At common law a person who had a pecuniary or proprietary interest in the action or suit was an incompetent 71. Appleton v. Boyd, 7 Mass. 131 ; Rex. v. Woburn, 10 East 403. 72. Frazier v. LaugMin, 6 111. 347; Scott v. Lloyd, 12 Peters (U. S.) 149. 73. Welchell v. State, 23 Ind. 89. 74. Henderson v. State, 70 Ala."23; Com. v. Eastman, 1 Cush. (Mass.) 189, 48 Am. Dec. 596; State v. Minor, 117 Mo. 303, 22 S. W. R. 1085. 75. Love V. People, 160 111. 501, 43 N. E. R. 710; Sta*e v. Steifel, 106 Mo. 129, 17 S. W. R. 227. 542 THE LAW OF EVIDENCE witness.''® The fact that he was not a party to the action or suit, was immaterial in such case.'''' The rule was applicable in both civil and crim- inal cases. As a general rule, a person who had a pecuniary interest in the outcome of a criminal prosecution was an incompetent witness.''* But the courts held that the complaining witness or prosecutor was a competent witness, even al- though by statute he was entitled to a reward.^® This exception was based upon public policy. Moreover, he was held competent to testify al- though he had furnished the prosecution pecun- iary aid;*" or was liable for costs where the court found that the prosecution was malicious.*^ The party injured by the criminal act was a com- petent witness agairist the defendant.*^ The de- fendant, however, was an incompetent witness in his own behalf.*^ Id. Peirce v. Chase, 8 Ma.ss. 487; Mason v, Jones, 36 111, 212; Keiser v. Moore, 14 Mo. 28 ; Marston v. Carr, 16 Ala. 32S. n. Hooker v. Johnson-, 8 Fla. 4S3 ; McEwen v. Johnson, 7 Cal. 258; Blake v. Irish, 21 Me. 450; Cook v. Mix, 11\ Conn. 432. ■ 78. State V. Fellows, 3 N. C. 340 ; State v. Bixby, 39 la. 465. 79. Com. V. Moulton, 9 Mass. 30; United States v. Murphy, 16 Peters, 203. 80. People v. Cunningham, 1 Denio (N. Y.) 524, 43 Am. Dec. 709. 81. Gilliam's Case, 4 Leigh (Va.):688; State v. Blennerhas- set, 1 M-iss. 7. 82. State v. Pike, 33 Me. 361; Com. v. Moulton, supra; Kersh V. State, 24 Ga. 191 ; Sandy v. State, 60 Ala. 58. 83. State v. Bixby, 39 la. 465; Batre v. State, 18 Ala. 119; Harwell v. State, 10 Lea (Tenn.) 544. COMPETENCV 543 The fact that persons had staked a wager on the outcome of a trial did not render them in- competent witnesses'.** Nor did a hope of gain grow- ing out of any illegal agreement have that effect.*^ But, as a rule, a person who would gain by the successful outcome of a trial, or lose by the un- successful outcome of it was an incompetent wit- ness.*® A mere prejudice or bias in regard to the case did not render a person incompetent.*^ The interest to disqualify had to be of a pecuniary nature, and it had to be legal, certain and direct.** A mere moral obligation pertaining to the case was insufficient to disqualify.*" But the fact that a person was pecuniarily interested in the costs of the trial rendered him incompetent.*" Mr. Greenleaf says "The true test of the interest of a witness is that he will either gain or lose by the direct legal operation and effect of the judg- ment, or that the record will be legal evidence for or against him in some other action. It must 84. Kellog V. Nelson, S Wis. 12S; United States v. Carrico, 25 Fed. Cas. No. 14, 734, 5 Cranch C. C. 112. 85. 'Charleston v. Weikman, 1 Rich. (S. C.) 240. 86. Blum V. Stafford, 49 N. C. 94; Woodruff v. Daggett, 20 N. J. L. 526. 87. People v. Cimning'ham, supra; Cockrum v. State, 24 Tex. 394; Summerall v. Thomas, 3 Fla. 298. 88. Carbon v. Stout, 2 Bush (Ky.) 246; Cutter v. Fanning, 2 la. 580; Scule v. Mason, 43 Pa. St. 99; Gott v. Williams, 29 Mo.- 461. 89. Fink v. McCkng, 9 111. 569;, Jones v. Love, 9 Cal. 68. 90. Myers v. Walker, 31 111. 353; Ware v. Jordan, 21 Ala. 837 ; Bennett v. Dowlitig, 22 Tex. 660. 544 THE LAW OF EVIDENCE be a present, certain and vested interest, and not an interest, uncertain, rethote, or contingent."®^ Where the interest was contingent or doubtful, while it might have affected the person's credi- bility, it did not render him incompetent.®^ A mere expectation of gaining some material ad- A^antage from the outcome of the suit did not dis- qualify a person.®^ Where the ijiterest was ad- verse to the party calling him, or where their in- terests were balanced, the party was a compe- tent witness.®* Assignors were usua;lly regarded as disqualified.''^ But a partner who had assign- ed all his interest, and who had been released from all liability, w"as a competent witness in a- suit relating to a firm transaction.®^ A party to a non-negotiable note was a bompetent witness to impeach its validity.®® A bankrupt, ®'' and also his creditors,®^ were disqualified in bankruptcy proceedings, where their testimony had the ef- fect of increasing or diminishing the estate. A cestiie que trust was not qualified to testfy on behalf of the trustee where the proceedings in- volved the trust estate.®® Where a vendor was 91. 1 Greenleaf on Evid. § 390. See also, Adams v. Bd. of Trustees, 37 Fla. 266, 20 So. R. 266. 92. Scull V. Mason, supra; Cutter v. Fanning, supra. 93. Coghill V. Boring, IS Cal. 213i ! 94. Smalley v. Ellet, 136 111. SDO. ' ' 95. Hosack v. Rogers, 2S Wend. (N. Y.) 313. 96. Brown v. Babcock, 3 Mass. 29. 97. Williams v. Williams, 6 M. & W. 170. 98. Farrington v. Farringtoh, 4 Mass. 237. 99. Buchanan v. Buchanan 4(S Pa St IRfi COMPETENCY 545 sued for breach of covenant of warranty he was an incompetent witness."" And the drawer of a bill of exchange was not qualified to testify in an action on the bill against' the acceptor.^ A mere personal or business relationship with a party to the suit did not render a person an incompetent witness.^ But growing out of such relationship his interest might have rendered him incompetent.^ A person who was disqualified owing to his interest could remove the disqualification by transferring or releasing his interest.* Moreover, the parties to the action could waive the dis- qualification by consenting to the party- testify- ing.^ § 33. Statutory abrogation of the common-law rule. — Statutory provisions, both in England and in this country, have abrogated the common-law rule which disqualified a person on the ground of interest. Some of the early statutes modified rather than abrogated the rule. But the modern statutes very generally abrogate the rule. For a list of many of these statutes see 40 Cyc. 2256. 100. Meek v. Waltham, 20 Ark. 648. 1. Barney v. Nervvcomb, 9 Oush. (Mass.) 46. 2. Kennedy v. Evans, 31 111. -2S8; Jones v. Sasser, 18 N. C. 452. 3. George v. Kimball, 24 Pick. (Mass.) 234; Browning v. Cooper, 18 N. J. L. 196. 4. Fash V. Blake, 38 111. 5. Fletcher v. Sanders, 7 Dana, (Ky.) 345, 32 Am. Etec. 96; Allen V. Brown, 5 Mo. 323. 546 THE LAW OF EVIDENCE 1 These statutes have been frequently interpreted by the courts as enabling and not disabling acts.® They are given a Uberal interpretation. Statutes which remove the disqualification in civil actions are held to apply to all judicial proceedings which involve property rights, irrespective of the nature of the court in which the rights are ad- judicated.'^ And since bastardy proceedings are civil rather than criminal proceedings these stat- utes apply to them.* But they do not apply to proceedings which are essentially criminal in their nature.® The statutes generally provide, however, that defendants in criminal cases may testify in their own behalf if they choose to do so.^" But they may not, however, be compelled to do so.^'- In a few states the statutes contain restrictions under certain circumstances; as for 6. Curry v. Curry, 114 Pa. St. 367, 7 Atl. R. 61 ; Bradshaw V. Combs, 102 111. 428; Bates v. Forcht, 89 Mo. 121. 7. Cherry v. Com., 78 Va. 375 (to revoke a license) ; In re Raab, 16 Ohio St. 273 (administrator's account) ; Barker V. Bell, 46 Ala. 216 (contest" of will) ; In re Reynolds, 20 Fed. Cas. No. 11, 721 (habeas corpus) ; Reddick v. State, 21 Tex. App. 267, 17 S. W. R. 465 (on bail bond). 8. People V. Starr, 50 111. 52;, State v. Evans, 19 Ind. 92; State V. Mcintosh, 64 N. C. 607. 9. Harwell v. State, 10 Lea. (Tenn.) 544 (contempt pro- ceedings) ; State v. Darrington, 47 la. 518 (to keep the peace). 10.' State v. Kinder, 96 Mo. 548, 10 S. W. R. 77 ; Com. v. Mullen, 150 Mass. 394, 23 N. E. R. 51; State, v. Sims, 106 La. 453, 31 So. 71. . 11. Counsehnan v. Hitdhcock, 142 U. S. 547; Brown v. Walk- er, 161 U. S. 591. COMPETENCY 547 example where the ground of the suit or action is adultery/^ breach of promise of marriage/* etc. Again, some statutes provide that where one of the parties to the record is incompetent to testify the other party shall not be permitted to do so.^* These statutes do not apply, however, to an action by or against a corporation. For while the legal entity itself is physically incap- able of testifying it can do so through its officers and agents. ^^ § 34. Same. Other exceptions. — ^The enab- ling statutes which have abroga,ted the commpn- law rule which disqualified persons to testify on the ground of interest are very generally subject to the exception that interested persons are dis- qualified in actions against the executors or ad- ministrators of deceased persons, or against the guardians of incompetent persons, growing out of transactions with them.^® The courts hold, 12. Graves v. Harris, 117 Ga. 817, 45 S. E. R, 239. 13. Graves V. Rivers, 123 Ga. 224, 51 S. E. R. 318. 14. Ginter v. Breeden, 90 Va. 56S, 19 S. E. R. 656; Handlong V. Barnes, 30 N. J. L. 69. 15. North Hudson County Ry. Co. v. May, 48 N. J. L. 401, 5 Atl. R. 276. 16. In re Van Houghton, 147 la. 725, 124 N. W. R. 886, 140 Am. St. Rep. 340; Rudolph v. Rudolph, 207 Pa. St. 339, 56 Atl.R. 933; Park v. Ensign, 10 Kan. App. 173, 63 Pac. R. 280; Telford v. Howell, 220 111. 52, 77 N. E. R. 82; Sheldon v. Can-, 139 Mich. 654, 103 N. W. R. 181; Lowe V. Lowe, 111 Md. 113, 73 Atl. R. 878; Dolan v. Leary, 174 N. Y. 540, 66 N. E. R. 1107; Brader v. Brader, 110 Wis. 423, 85 N. W. R. 681; Harrell- v. Hagan, 150 N. C. 242, 63 S. E. R. 952. 548 THE LAW OF EVIDENCE however, that to exclude the testimony under this exception the case must come clearly within the terms of the statute.^''. As said in a Georgia decision, it is not enough that the case comes within the spirit of the statute, it must come within the letter pi it.^* Thjjs, it does not apply to a transaction with a corporation which has since become defunct.^® In order to exclude tes- timony under the statutory provisions under dis- cussion three elements must concur: "(i) The witness must belong to a class which the statute renders incompetent; (2) the party against whom the testimony is offered must belong to a class protected by the statute; and (3) the tes- timony itself must be of a nature forbidden by the statute."^" If any of these three elements is lacking the testimony is admissible.^^ The statutes of exclusion in the various states are not at all harmonious. Under most of them, however, the rule of exclusion is applicable only where one party to the action sues or defends as the representative of a defcedent or incompetent 17. Collins V. Crawford, 214 Mo, 167, 112 S. W. R. 538, 127 Am. St. Rep. 661 ; Crone v. Crone, 170 111. 494, 49 N. E. R. 217; Shrader v. United States Glass Co., 179 Pa. St. 623, 36 Atl. R. 330; Maynard v. Greer, 129 Ga. 709, 59 S. E. R.. 798. 18. Oliver v. Powell, 114 Ga. 592, 40 S. E. R. 826. 19. Williams v. Edwards, 94 Mo. 447, 7 S. W. R. 429. 20. 40 Cyc. 2263. 21. Morris v. Clinkscales, 47 S., C. 488, 25 S. E. R. 797. COMPETENCY 549 person.^^ It is immaterial whether the represen- tative is plaintiff or defendant.^ ^ Where the statute excludes testimony in act- ions by or against guardians of incompetent per- sons the courts hold that it does not apply to actions between guardians and their wards; but is confined to actions between guardians and third persons.^* Moreover, it has been held that such a statute does not apply where an infant defendant answei-s by a guardian ad litem.^^ It also has been held that, where one of the parties to the action is the representative of a deceased person, the rule of exclusion is appl,icable only - where the case involves a direct and immediate conflict of interest between the dead and the liv- jjjg 26 Under some statutes the rule of exclusion is not applicable unless the testimony tends to in- crease or diminish the decedent's estate.^'^ Thus, where the contest pertains to the distribution of the insurance on the life of the decedent ;^^ or 22. Reddick v. Keesliflg, 129 Ind. 128, 28 N. E. R. 316. 23. Leason v. Nitolscm, 59 la. 259, 12 N. W. R. 270, 13 N. W. R. 289. 24. Jones v. Parker, 67 Tex. 76, 3 S. W. R. 222. 25. Mcbonald v. McDonald, 24 Ind. 68. 26. Alabama Gold L. Ins. Co. v. Skdge, 62 Ala. 566. 27. Seymour v. Wallace, 127 Midh. 669, 87 N. W. R. 90; Doe V. Edmondson, 145 ,Ala. 557, 40 So. R. 505; City Nat. Bank v. Crahan, 135 la. 230, 112 N. W. R. 793; Morgan V. Brooker, 106 Va. 369, 56 S. E. R. 137. 28. Knights of the Maccabees v. Savage, 135 Mich. 459, 98 N. W. R. 26 ; Farenkoph v. Holm, 237 111. 94, 86 N. E. R. 702. 550 ■ THE LAW OF EVIDENCE to a claim of dower by the widow of the dece- dent against his alleged grantee;^® or to the dis- tribution of the decedent's estate;^" or to a fam- ily allowance out of the estate, ^^ the rule of ex- clusion has been held not to apply. Nor does it apply to provisions for probating a will.*^ The proponent and executor in such case is a compe- tent witness.*^ Nor does the rule of exclusion apply in an action to. recover damages for caus- ing the death of the decedent.^* As a general rule, the representative of the decedent is a com- petent witness f^ while, on the other hand, a party adverse to him is incompetent.^® § 35- Suljscribing witnesses to a will. — A sub- 29. Lake v. Nolan, 81 Mich. 112, 45 N. W. R. 376. 30. Nolen v. Doss, 133 Ala. 259, 31 So. R. 969; In re Allen, 207 Pa. St. 325, 56 Atl. R. 928. Contra, Crumley v. Wor- den, 201 111. 105, 66 N. E. R. 318. 31. In re McCausland, 52 Cal. 568. ^ 32. Hogan v. Hinchey, 195 Mo. 527, 94 S. W. R. 522; Will- iams V. Miles, 68 Neb. 463, 94 N. W. R. 705, 96 N. W. R. 151, 110 Am. St. Rep. 431, 62 L. R. A. 383, 4 Ann. Cas. 306. 33. Loder v. Whelp'ley, 111 N. Y. 239, 18 N. E. R. 874. 34. Lake Erie, etc., Ry. Co. v. Cha^rmati, 161 Ind. 95, 67 N. E. R. 923. 35. Grindle v. Grindle, 240 111. 143, 88 N. E. R. 473; Cincin- nati, etc., Ry. Co. v. Cregor, 150 Ind. 625, 50 N. E. R. 760; Tabor v. Tabor, 136 Midh. 255, 99 N. W. R. 4. 36. Bailey v. Robison, 244 111. 16, 91 N. E. R. 98; Frye v. Gulliton, 143 la. 719, 121 N. W. R. 563; Roach v. Roach, 69 Kan. 522, 77 Pac. R. 108; Forrester v. Sullivan, 231 Mo. 345, 132 S. W. R. 722; Boyd v. Daily, 176 N. Y. 613, 68 N. E. R. 1114; Shroyer v. Smith, 204 Pa. St. 310, 54 Atl. R. 24. COMPETENCY 551 scribing witness to a will, or the husband or wife of a subscribing witness to a will,, who is also a beneficiary, is an incompetent witness to prove the will. Mr. Best says that this exception is the "sole survival of the numerous exclusionary rules making witnesses incompetent by reason of relationship or pecuniary interest."^''' Where an heir-at-law is a subscribing witness to a will, and not a beneficiary, he is a competent witness to prove the will.^^ § 36. Widow, heirs and beneficiaries. — The widow of a decedent is a competent witness in a suit involving the decedent's estate, where she is not a party. ^^ But where she is interested in the result of the siiit she is incompetent.*" An heir, as such, is not necessarily disqualified as a witness where the decedent's estate is in- volved.*^ But where the result of the action may be to increase or diminish the estate of the de- cedent, and the heir has a direct interest in the result, he is incornpetent to testify.** The mere •37. Best on Evid. ( ChaiTiberlain's ed.j 178, note. 38. Spalrhawk v. Sparhawk, et- ah, 10 Allen (Mass.) ISS; Strawn v. Shanik, 110 Pa. 259, 262. 39. Di'cken v. Winters, 169 Pa. St. 126, 32 Atl. R. 289 ; Lynn V. Hotaday, 162 Mo. Ill, 61 S. W. R. 885, 85 Atn. St. Rep. 480; Litchfield; v. Merritt, 102 Mass. 520. 40. SanfoTd v. Ellithorp,- 95 N. Y. 48. 41. Muir V. Miller, 82 la. 700, 47 N. W. R. 1011, 48 N. W. R. 1032 (suit to set aside a distribution 'by father, and one son not a. party). 42. Penny v. Croul, 87 Mich. IS, 49 N. W. R. 311, 13 L. R. A. 83; Woodbury v. Heiining, 148 la. 23, 126 N. W., R. 912; Keener v. Zajrtman, 144 Pa. St, 179, 22 Atl. R. 889. 552 THE LAW OF EVIDENCE fact that a person may eventually share in a de- cedent's estate, which is the subject-matter of the suit, does not disqualify him.*^ Nor does the fact that a person is the husband of an heir who is disqualified-** Moreover, where the estate is insolvent an heir is not disqualified.*^ Legatees and devisees under a will .are held to be competent witnesses in a contest over a will.*^ This is based upon the fact that their in- terests are contingent, in that they are dependent upon the amount of the decedent's debts. The latter must be paid first. Another reason that has been assigned for the rule is that legatees and devisees are not parties to the suit.*^ § 37. Sureties and guarantors. — The sureties on a guardian's bond, in a suit by his ward to re- cover money wrongfully appropriated by the guardian, are incompetent witnesses.*** And the sureties on the bond of an executor or adminis- trator are also incompetent witnesses.*" More- over, the sureties on a prosecution bond are not competent to testify against the defendants in an action founded upon a personal transaction 43. Boyd v. Boyd, 163 111. 611, 45 N. E. R. 118; Ha,rraway v. Harraway, 136 Ala. 499, 34 So. R. 836. 44. Freeman v. Freemani 62 III. 189. 45. Gidney v. Logan, 79 N. C. 214. 46. Disbrow's Est., 58 Mich. 96, 100, 24 N. W. R. 624. 47. Wheeler v. Town-s, 43 N. H. 56. 48. Crawford v. Parker, 96 Ga. 156, 23 S. E. R. 196. 49. Miller v. Montgomery, 78 N. Y. 282. COMPETENCY 553 with a decedent under whom the defendants claim. ^^ § 38. Transactions with agents and partners. — In an action between a party and the repre- sentative of a deceased person one who had acted as an agent of either party, concerning the matters in dispute, is, as a general rule, a compe- tent witness. ^^ In a few states, however, the statutes provide otherwise. ^^ In most jurisdic- tions either party to the action is competent to testify to transactions between one of the par- ties and a deceased agent of the other party.'^ In a few jurisdictions, however, the statutes ex- clude the adverse party as to transactions be- tween him and the deceased agent of the other party.^* As a general rule, the agent of the ad- verse party is competent to testify to transac- tions between him and a~ deceased or incompe- tent party. ^^ This view is based upon the fact that the agent is neither a party to the action nor interested in the result. The statutes upon this 50. McGowan v. Davenport, 134 N. €. 526, 47 N. E. R. 27. 51. Whitttian v. Foley, 125 N. Y. 651, 26 N. E. R. 725 ; Shaub V. Smith, 50 Obi'O St. 648; O'Neill v. Wilcox, 115 la. IS, 87 N. W. R. 742. 52. Ins. Co. of N. Ameir. v. Brim, 111 fad. 281, 12 N. E. R. 31S; McCamy v. Cavender, 92 Ga. 2S4. 53. Roberts v. Richmond Co., 109 N. C. 670; Reynolds v. loTva Ins. Co., 80 la. 563. 54. Gustafson v. Eger, 132 Mich. 387, 93 N. W. R. 893 ; Moore V. May, 117 Wis. 192, 94 N. W. R. 45. 'SS. Darwin v. Keiger, 45 Minn. 64; Nerpass v. Gilman, 104 N. Y. 506. 554 THE LAW OF EVIDENCE point, however, are not harmonious. Where the agent is personally interested in the outcome of the suit, as in case of fraudulent transactions on his part in the execution of the agency, he is not a competent witness to testify to transactions between him and a deceased or incompetent per- son. ^^ In an action between an agent and a party to the contract the fact that the subject-matter of the action belonged to deceased does not make the agent an incompetent witness.^'' In an action between a surviving partner and another, growing out of a firm transaction made between the latter and a partner since deceased in the absence of the surviving partner, the party with whom the contract was made is an incom- petent witness. ^^ He is a competent witness, however, if the transaction was entered into in the presence of the surviving witness.^* Where the representative of a deceased partner is a party to an action the surviving partners are in- competent witnesses both in their own behalf and against the* representative.®" In an action against the owner of a business, where the proof .does not show that he is incapable of meeting his obligations growing out of the business, oiie 56. Butz V. Schwartz, 135 111. 180. 57. Davis V. Hawkins, 163 Pa. St. 228. 58. People's Nat. Bank v. Wilcox, 136 Mich. 567, 100 N. W. R. 24; Harris v. Bank, 22 Fla. 501, 1 Am. St. Rep. 201. 59. McGehee v. Jones, 41 Ga. 123 ; Lawrence v. Vilas, 20 Wis. 38,1. 60. Dick V. Williams, 130 Pa. St. 41 ; Godfrey v. Templeton, 86 Tenn. 161. COMPETENCY 555 who has made himself liable as a partner by holding himself out as a partner is a competent witness.®^ § 39. Members of a corporation.-^Some stat- utes provide that persons interested in the out- come of a suit are incompetent witnesses ; while others provide that parties to the suit are in- competent. In the former case both the oiifii- cers*^ and the stockholders®^ of a corporation are disqualified ; while in the latter case both the officers"* and the stockholders®^ of a corporation are competent witnesses. Since the compe- tency of a witness depends upon his status when he is called,®® a former stockholder who has disposed of his stock, is competent to tes- tify.®^ Some courts, however, have held the con- 61. Hucaba v. Abbott, 87 Ala. 409, 6 So. R. 48. 62. Chicago University v. Emmett, 108 la. SOO, 19 N. W. R. 285 ; Farmers' Bank v. Wickliffe, 134 Ky. 627, 121 S. W. R. 498. 63. Farmers' Bank v. Wickliffe, supra; Consolidated Ice Ma- chine Co. V. Keifer, 134 111. 481, 25 N. E. R. 799, 23 Am. St. Rep. 688, 10 L. R. A. 696. 64. Mendenhall v. Jewell County School Dist., Id Kan. 173, 90 Pac. R. 773; Flach v. Gottschalk Co., 88 Md. 368, 41 Atl. R. 908, 71 Am. St. Rep. 418, 42 L. R. A. 745. 65. Johnson v. Fraternal Res&rve Assoc., 136 Wis. 528, 117 N. W. R. 1019; Flach v. Qottsahalk, supra. 66. In re McNaughitton, 138 Wis. 179, 118 N. W. R. 997, 120 N. W. R. 288; Bank of Southwestern Georgia v. Mc- Harrah, 120 Ga. 944, 48 S. E. R. 393. 67. Tecumseh Nat. Bank v. McGee, 61 Neb. 709, 85 N. W. R. 949; Loder v. Whelpley, 111 N. Y. 239, 18 N. E. R. 874. 556 THE LAW OF EVIDENCE trary.^^ In an action against a corporation to compel it to transfer stock, where the person from whom the plaintiff purchased it is dead, the plaintiff is a competent witness. ^^ In an action between a corporation and an individual, grow- ing out of a transaction between the latter and an agent of the corporation who is since de- ceased, the individual who dealt with the agent is an incompetent witness.'^" The reason is the corporation is not the survivor of the agent. Moreover, since the corporation is merely an artificial being it has no knowledge of the transaction. In regard to a transaction by an agent of the corporation the adverse party is a competent witness although the corporation has been dissolved, provided the agent is still liv- ing.''^ And in an action against a corporation to compel it to rpake a transfer of stock purchased by the plaintiff, the latter is a competent witness in his own behalf, even when his vendor is since deceased.''^^ § 40. Incompetency of person from whom title or interest is derived. — Some statutes provide that the party from whom another derives title 68. Lenora Nat. Bank v. Ragland, 128 Ky. 548, 108 S. W. R. 8S4, 32 Ky. L. Rep. 1403. 69. Firemen's Ins. Co. v. Peck, 126 111. 493. 70. Sidway v. Missouri Co., 163 Mo. 342, 63 S. W. R. 705; Florida Central Go. v. Usiana, 111 Ga. 697, 36 S. E. R. . 928. 71. Williams v. Edwards, 94 Mo. 447. 72. Firemen's Ins. Co. v. Peck, 126 111. 493. COMPETENCY 557 or interest in property is not competent to tes- tify in an action concerning the property.''^* Thus,' assignors/* grantors'^^ and mortgagors''^® have been held incompetent under these stat- utes. On the other hand, the parties to negoti- able paper are competent witnesses under them.'^ And in an action between a spouse and a third party the other spouse may be a com- petent witness. Thus, where the wife performs services which are to accrue to her separate estate the husband is a competent witness in an action by the wife to recover the value of the services.'^® And where the husband is entitled to his wife's services and he sues to recover their value the wife is a competent witness.'^^ Wheth- er a parent is a competent witness or not, in an action by his or her child against a third person to recover the value of services, depends upon the circumstances of the particular case.^" 73. Gray v. Wrigiht, 142 la. 22S, 119 N. W. R. 612; Toner v. Wagner, 1S8 Ind. 447, 63 N. W. R. 612; Dreg-er v. Budde, 133 Wis. 516, 113 N. W. R. 950. 74. Shields v. Smith, 104 N. C. 57, 10 S. E. R. 76 ; Tintsman V. Croushore, 104 Pa. St. 192. 75. Ferbracbe v. Ferbrache, 110 111. 210; Moore v. Williams, 129 Ala. 329, 29 So. R. 795. 76. Clinton- Sav. Bank v. Underhill, 115 la. 292, 88 N. W. R. 357. n. Comstock V. Hier, 73 N. Y. 269, 29 Am. Rep. 142. 78. Slack V. Nortoni 111 Mich. 213, (>9 N. W. R. 497. 19. Porter v. Dunn, 131 N. Y. 314, 30 N. E. R. 122. 80. Rosseau v. Rouss, 180 N. Y. 116, 72 N. E. R. 916 (mother incompetent) ; Weese v. Yokum, 62 W. Va. 550, 59 S. E. R. 514. 5S8 THE LAW OF EVIDENCE § 41. Incompetency of surviving party to a contract. — Under some statutes where one of the parties to a contract is deceased or incom- petent the other party is disquaHfied.*^ These statutes, however, are not harmonious. Thus, under some the disquahfication is confined to the original parties to the contract f^ while under others it extends to parties who derive their rights under the contract from the original par- ties.*^ These statutes have been held not to ap- ply to actions involving title to real estate.^* A discharge in bankruptcy is not considered the equivalent of death or incompetency.®^ § 42. Some statutes very broad.-— In a few states the disqitalifying statutes are very broad. Thus, in California interested persons are in- competent to testify to any fact which occurred prior to the decedent's death.®^ It is generally held, however, that a person is not disqualified to testify unless his interest is adverse to that of the decedent.*'^ The mere fact that his testimony 81. Blobmsburg First Nat. Bank v. Gerli, 225 Pa. St. 256, 74 Atl. R. 52; Gfeen.Real Est. Co. v. St. Louis Mut. House Bldg. Co., 196 Mo. 358, 93 S. W. R. 1111. 82. O'Bryan v. Allen, 95 Mo. 68, 8 S. W. R. 225 ; Kenyon v. , Peirce, 17 R. I. 794, 24 Atl. R. 825. 83. Eyermann v.'Piron, 151 Mo. 107, 52 S. W. R. 229. See also, Asbui-y v. Hicklin, 181 Mo. 658, 81 S. W. R. 390. 84. Warren v. Steer, 112 Pa. St. 634, S Atl. R. 4. 85. Oatis V. Harrison, 60 Ga. 535. 86. Stuart v. Lord, 138 Cal. 672, 72 Pac. R. 142. 87. Bloomsburg First Nat. Bank v. Gerli, supra; Perry v. Hodnett, 38 Ga. 103. COMPETENCY 559 is adverse to the decedent does not disqualify him.^** Whei^e both the contracting parties are dead, and the action is between' their administra- tors, the statutes do not apply.®^ § 43. Persons to whom the statutes apply .^ The statutes which disqualify the surviving party to a contract, whose interest is adverse to .that of the decedent, apply to many classes of persons, including the parties to a deed,®" mort- gage,*^ bond,®^ lease,** or contract of sale.** A donor who seeks to set aside a gift after the donee's death is an incompetent witness.*^ And an alleged donee who seeks to establish a gift after the donor's death is an incompetent wit- ness.*® But where the alleged gift is one merely in name and not in substance the apparent donee is not incompetent to testify to the facts. Thus, where a wife's land is sold and a promissory note is given by the purchaser in payment of the pur- chase price, payable to the husband and wife, 88. Bloomsburg First Nat. Bank v. Gerli, supra. 89. Atkin v.. Atkin, 69 Vt. 270, 37 Atl. R. 746. ' 90. Brawn v. Patterson, 224 Mo. 639, 124 S. W. R. 1 ; Traf- ton V. Hawes, 102 Mass. ,533, 3 Am. Rep. 494. 91. Junkins v. Lovelace, 72 Ala. 303. 92. Grigsby v. Simpson, 28 Gratt. (Va.) 348. 93. Duffield v. Hue, 129 Pa. St.. 94, 18 Atl. R. 566. 94. Saunders v. Greever, 85 Va. 252, 7 S. E. R. 391. 95. Yeakel v. McAtee, 156 Pa. St. 600, 27 Aitl. R. 277; Wade V. Pulsifer, 54 Vt. 45.- 96. Patterson v. Dushane, 115 Pa. St. 334, 8 Atl. R. 440; Bothwell V. Dobbs, 59 Ga. 787. 560 THE LAW OF EVIDENCE and the husband subsequently gives this note to the wife, the latter is a competent witness, after the husband's death, to prove the facts.®''' On the other hand, either spouse is incompetent to testify to a contract made between them where the other spouse is dead.®* Whether this rule is applicable or not to exclude an alleged widow from testifying to the fact of marriage is a ques- tion upon which the decisions are not harmoni- ous.®" In a contest over a will, the heir and benefic- iaries are competent witnesses. ■'■'"' They are not^ of course, surviving parties to a contract. More- over, the rule applicable to donees in the case of gifts interuivos does not apply. Whether a surviving partner is a competent witness or not depends upon the circumstances of the particular case. In a suit for an account- ing he is incompetent to testify in his own behalf as regards transactions with a deceased copart- ner.^ But in an action against him on a note given by the deceased partner in the firm name 97. Magee v. Burch, 108 Mo. 336, 18 S. W. R. 1078. 98. In re Robinson, 222 Pa. St. 113, 70 Atl. R. 966, 128 Am. St. Rep. 794; Smith v. Lurtz, 108 Va. 799, 62 S. E. R. 789; Xoihnston v. Johiniston, 173 Mo. 91, 73 S. W. R. 202, 96 Am. St. Rep. 486, 61 L. R. A. 166. 99. Green v. Green, 126 Mo. 17, 28 S. W. R. 752, 1008 (widow not disqualified) ; Redgrave v. Redgrave, 38 Md. 93 (wid- ow disqualified). 100. McKee v. Downing, 224 Mo. 115, 124 S. W. R, 7 (heir) ; Garvin v. Williams, 50 Mo. 206 (beneficiary). 1. Graham v. Howell, 50 Ga. 203. COMPETENCY 561 he is a competent witness to prove that the note was fraudulently given by the partner since de- ceased wholly for his own private benefit.^ In the case of a contract between a principal and agent the death of either renders the other party an incompetent witness.^ But where the agent makes a coiitract with a third party on be- half of his principal, the death of either the third party or the principal does not render the agent an incompetent witness.* This is owing to the fact that the agent is merely a go-between arid not a part)'- to the contract; But where the prin- cipal is dead, and the agent disqualified although living, the third party is incompetent.^ Where one of two obligees or obligors of a contract is dead the adverse party is, ordinarily, a competent witness.® Under a few statutes, however, the rule is otherwise. '^ The statutes under discussion usually protect the representatives of deceased persons, includ- ing executors and administrators.* They also 2. Lancaster Co. Nait. Bank v. Henning, 171 Pa. St. 399, 33 Atl. 335. 3. Brown v. Brightman, 11 Allen (Mass.) 226; Harper v. Dillon, 60 Ga. 498. 4. Sargeamt v. Nat. L. Ins. Co., 189 Pa. St. 341, 41 Atl. R. , 351; Clark v. Thias, 173 Mo. 628, 73 S. W. R. 616. 5. Lyngar v. Shafer, 125 Mo. App. 398, 102 S. W. R. 630. 6. Bennett v. Frary, 55 Tex. 145; Asih v. Guie, 97 Pa. St. 493, 39 Am. Rep. 818. 7. Hefflebawer v. Detrick, 27 W. Va. 16; Gavin v. Bischoff, 80 la. 605, 45 N. W. R. 306. 562 THE LAW OF EVIDENCE usually protect the heirs and beneficiaries of a decedent.^ Some protect the grantee of a dece- dent/" while others do not.^^ And some protect the assignee of a decedent/^ while others do not.^^ They do not protect the creditors of a decedent.** But they have been held to protect the sureties of a decedent.*^ Whether they pro- tect the widow of a decedent depends upon the circumstances of the particular case. Where she sues or defends in the capacity of executrix or administratrix of her deceased husband they protect her.*® But where she sues in her own behalf, claiming in her own right, they do not protect her.*'' They protect an administrator or 8. Burke v. Dunn, 117 Mkh. 430, 75 N. W. R. 931; Kersey V. O'Day, 173 Mo. S60, 73 S. W. R. 481 ; Moore v. Fin- gar, 131 N. Y. App. Div. 399, 115 N. Y. Suppl. 1035. 9. Gladvill« v. McDoIe, 247 111. 34, 93 N. E. R. 86; Renz v. Drury, 57 Kan. 84, 45 Pac. R. 71 ; Joss v. Mcvhn, 55 N. J. L. 407, 26 Atl. R. 987. 10. Hendrick v. Daniel, 119 Ga. 358, 46 g. E. R. 438. 11. Hudson V. Hudson, 237 III. 9, 86 N. E. R. 661. 12. Kolasky v. Micbels, 120 N. Y. 635, 24 N. E. R. 278. 13. Elliott V. Shaw, 32 Ohio St. 431; Leach v. Nichols, 55 111. 273. 14. Hutzler v. Phillips, 26 S. C. 136, 1 S. E. R. 502, 4 Am. St. Rep. 687 ; Uhlmann v. Brownell, 121 N. Y. 652, 24 N. E. R. 1091. 15. McGowan v. Davenport, 134 N. C. 526, 47 S. E. R. 27. 16. Hess V. Lowrey, 122 Ind. 225, 23 N. E. R. 156, 17 Am. St. Rep. 355, 7 L. R. A. 90. 17. Lake v. Nolan, 81 Midi. 112, 45 N. W. R. 376 (contract between widow claiming dower and grantee of deceased husband) ; Howers v. Flowers, 92 Ga. 68, 18 S. E. R. 1006 (dower preceedings) . COMPETENCY 563 executor de son tort,'^^ but not a foreign admin- istrator or executor. ^^ For an able and exhaustive discussibn of the statutes relating to the competency of witnesses in actions involving the estates and transactions of deceased or incompetent persons see 40 Cyc. pp. 2256-2352. § 44. Accomplices. — An accomplice is a per- son who knowingly, voluntarily, and with com- mon intent with the principal ofifender, unites with him in the commission of a crime. ^^ As to the, competency of an accomplice the decisions have not been harmonious. According to some- of the early decisions an accomplice could not testify without the assent of the court. More- over, he must have been acquitted of the crime at issue. ^'^ According to other early decisions an accomplice was a competent witness, even when the law excluded persons who were interested in the outcome of the action.^^ This was based upon necessity. If the rule had been otherwise justice might have been defeated. But even un- der this more liberal rule accomplices were in- competent witnesses where they were parties to 18. Parker v. Thompson, 30 N. J. L. 311. 19. Buckingham v. Andrews, 34 Barb. (N. Y.) 434, 12 Abb. Pr. 322. 20. Peopk V. Bolanger, 71 Cal. 20, Whart. Crim. E-?id., §440; 4 Bl. Comm. 35. 21. Meyers v. State, 3 Tex. Cr. App. 8; Fitzgerald v. State, 14 Mo. 413. 22. Gray v. People, 26 111. 344; Ayers v. State, 88 Ind. 275; Noland v. State, 19 Ohio 131. 564 THE LAW OF EVIDENCE the record.^^ Or had previously been convicted of an infamous crime, unless pardoned.^* Where they were jointly indicted and tried they were incompetent, unless acquitted on a separate ver- dict; or, if convicted on a separate verdict had paid the fine;^^ or had pleaded guilty. ^^ It also has been held that where there is no evidence at all against a defendant,^'' or where he has been made a co-defendant merely to disqualify him as a witness,^* he may testify. Where an accom- plice is given a separate trial he is a competent witness for the state, although jointly indicted.^^ And where he is separately indicted some courts have Tield that he is a competent witness in be- 23. State v. Shields, 45 Conn. 2S6; Earll v. People, 73 111. 239; United States v. Lancaster, 2 McLean (U. S.) 431. See also, cases in foot-note 22. 24. Com. V. Knapp, 9 Pick. (Mass.) 49S. See also, notes, 73 Am. Dec. 775 ; 33 Am. Rep. 639. 23. State v. Stei'fel, 106 Mo. 129 ; Lindsay v. People, 63 N. Y. 143 ; R. V.' Fletcher, 1 Strange 633. 26. Wells V. Territory, 15 Okla. 195, 81 Pac. 425; State v. Knudson, 11 Idaho 524, 83 Pac. R. 226. 27. Cochrain v. Ammon, 16 111. 316; State v. Shaw, 1 Root (Conn.) 134. 28. Cochran v. Ammon, supra; Beasley v. Beasley, 2 Swan (Tenn.) 180. 29. State t. Stewart, 142 Mo. 412, 44 S. W. R. 240; Lindsay V. People, 63 N. Y. 143; Conway v. State, 118 Ind. 482, 21 N. E. R. 285. 30. State V. Unuble, 115 Mo. 452, 22 S. W. R. 378. See aiso, Marshall v. State, 8 Ind. 498 (jointly indicted). COMPETENCY 565 half of other defendants.^" Other courts, how- ever, have held the contrary. ^^- The modern rule, as regai^ds the competency of accomplices, is somewhat more liberal than the early rule. Mr. Wharton says, "An accom- plice is a competent witness for the prosecution, although his expectation of pardon depends upon the defendant's conviction, and although he is a codefendant, provided in the latter case his trial is severed from that of the defendant against whom he is ofifered."^^ Mr. Greenleaf says, "The usual course is, to leave out of the indictment those who are to be called as wit- nesses, but it makes no difference as to the ad- missibility of an accomplice, whether he is in- dicted '5r not, if he has not been put on his trial at the same time with his companions in guilt. "^' And Brewer, J., says, " 'Referring to the English authorities, it has there been held that, at com- mon law, and independently of any statute, when two persons jointly indicted are tried to- gether, neither is a competent witness; but that if one is tried separately, the other is a compe- tent witness against him, because, as observed by Mr. Justice Blackburn, 'the witness was a party to the record, but had not been given in charge to the same jury.' "^* In a number of the 31. State V. Jones, 51 Me. 125, 126; Com. v. Marsh, 10 Pick. (Mass.) 57. •32. Wharton on Crim. Evid. (8th ed.), §439. 33. 1 Greenleaf on Evid., § 379. 34. Benson v. United States, 146 U. S. 325, 324. 566 THE LAW OF EVIDENCE states there are statutes which contain express provisions in regard to the competency of ac- comphces. § 45. Same. Participation in an act to entrap. — -It is sometimes important to discriminate be- tween a crime and an act which constitutes the basis of crime. Ordinarily, where a person participates in an act which constitutes the basis of a criminal offense with the view of entrap- ment he is not an accomplice. Thus, where a person purchases lottery tickets with the view of entrapping the dealer and having him prose- cuted criminally the purchaser is not an accom- plice.^^ The same principle is applicable where a person purchases intoxicating liquor of an- other with the view of entrapment. In each case he participates in the transaction but not in the crime. Again, where a poHceman frequents a gaming house with the view of entrapment he is not an accoijiplice.^" To be an accomplice a person must be involved either directly or indi- rectly in the commission of the crime. Where a person enters into a confederacy with another with the view of entrapping his confederate, he has no criminal intent. It may be well to ob- 35. People v. Fa'rrell, 30 Cal. 316; Wright v. State, 7 Tex. App. 574 ; Reg. v. Mullins, 3 Co.x's Crim. Cas. 526. 36. Com. V. Baker, 155 Mass. 287, 29 N. E. R. 512. See also, ■ Com. V. HoUister, 157 Pa. 13, 27 Atl. R. 386, 25 L. R. A. 349; Price v. People, 109 111. 109; State v. McKean, 36 la. 343, 14 Am. Rep. 530; People v. Bolanger, 71 Cal. 17; State V. Brownlee, 84 la. 473, 51 N. W. R. 25 (detectives). COMPETENCY 567 serve, however, that where the owner of prop- erty consents to the taking of it with the view of entrapment and prosecution there is no crime. ^'^ But merely feigning drunken slumber with that end in view does not amount to consent. Thus, where a detective caroused with persons be- lieved to be thieves, and then feigning drunken- ness wandered down an alley where he purpose- ly fell down and feigned to be asleep, and per- mitted the suspected parties to rifle his pockets, he was not an accomplice.^* § 46. Credibility of accomplices. — May a de- fendant be convicted solely upon the uncorrob- orated evidence of an accomplice? Is it prejudi- cial error for the trial court not to instruct the jury that they should not convict the defendant solely upon the uncorroborated evidence of an accomplice? If a defendant may not be convict- ed solely upon the uncorroborated evidence of an accomplice is corroborative evidence of one or more accomplices sufficient? Since an ac- complice is a competent witness, and his credi- bility is a question for the jury to determine, it would seem that a defendant might be convicted upon his uncorroborated evidence. In harmony with this view courts have refused to set aside verdicts based solely .upon this clas's of evi- 37. Connor v. People, 18 Colo. 373, 33 Pac. R. 159, 25 L. R. A. 341, 36 Am. St. Reip. 295 ; Pigg v. State, 43 Tex. 108. 38. People v. Hanselman,, 76 Cal. 460, 18 Pac. R. 425, 9 Am. St. Rep. 238. 568 THE LAW OF EVIDENCE dence.^® On the other hand, a rule of criminal practice has obtained for a long time that the court charge the jury that they should not con- vict solely upon the uncorroborated evidence of an accomplice.*" In the face of this rule, how- ever, the higher courts' have held many times that it is a matter that rests in the discretion of the trial court, and that a refusal to instruct the jury upon this point is not prejudicial error.*^ In many jurisdiqtions, however, a conviction based solely upon the uncorroborated evidence of an accomplice is not allowable.*^ And in many of these jurisdictions the rule of criminal practice heretofore referred to has been made a rule of law by statute. It has been held that the evidence essential to corroborate an accomplice cannot be furnished by other accomplices.*^ But the wife of an ac- complice may corroborate the evidence of her 39. State v. DeHart, 109 La. 570, 33 So. 60S ; Ingalls v. State, 48 Wis. 647, 4 N. W. R. 785; State v. Hill, 48 W. Va. 132, 35 S. E. R. 831. 40. State v. Williamson, 42 Gonn. 261 ; Smith v. State, 10 Wyo. 157, 67 Pac. R. 977; State v. Rachman, 68 N. J. L. 120, 53 Atl. R. 1046; R. v. Stubbs, 33 Eng. L. & Eq. 552. 41. Houselman v. People, 168 111. 172, 48 N. E. R. 304; Com. V. Holmes, 127 Mass. 424. 42. Lmnpkin v. State, 68 Ala. 56; People v. Mayhew, 150' N. Y. 346; Com. -v. Holmes, 'l27 Mass. 424; State v. Chyo Chiack, 92 Mo. 395; Carroll v. Com;, 84 Pa. St. 107; Childer v. Sta;te, 52 Ga. 106; State v. Stebbins, 29 Comi. 483; State v. Eisenhaus, 132 Mo. 14^. 43. State v. Williams, 42" Corm. 261 ; United States v. Himz, ' 35 Fed. R. 272. , COMPETENCY 569 husband.** The corroborative evidence may be wholly circumstantial. Thus, where the defend- ant is charged with larceny, the evidence of an accomplice has been held sufficiently corrob- orated by showing that the goods stolen were found in the defendant's possession.*® But the mere fact that the defendant was found in a barn where the stolen, goods were found has been held insufficient corroboration.*® Where the de- fendant sets up an alibi, evidence that he was near the place where the crime was committed at the time it occurred serves to corroborate an accomplice.*'' And other conduct of the defend- ant, as well as admissions or declarations by him, may be introduced in evidence for the same purpose.*® Likewise documentary evidence which shows concerted action of the defendant and the accomplice pertaining to the crime charged.*® The corroborative testimony must show not only niaterial facts sufficient to prove the_ commission of the crime charged, but also 44. State v. Moon, 2S la. 128; People v. Everhardt, 104 N. Y. S91. 45. Ryan v. State, 83 Wis. 486; Com. v. Savory, 10 Cush. (Mass.) 535 ; Boswell v. State, 92 Ga. 581 ; Jernigan v. State, 10 Tex. App. 546. 46. State v. Griff, 47 la. 384. 47. Cotn. V. Drake, 124 Mass. 1. 48. Cox V. Com., 125 Pa. St. 94; People v. Collins, 64 Cal. 293 ; Partee v. State, 67 Ga. 570. 49. State v. Smalls, 11 S. C. 262; State v. Kellefman, 14 Kan. 135. ' 570 THE LAW OF EVIDENCE the identity of the defendant as a participator in the commission of the crime.^" To constitute a person an accomplice his par- ticipation in the ofifense charged must be wil- ful. ^^ Thus, a woman upon whom an abortion has been performed is not an accomplice.®^ One who does not aid or abet in the commission of the ofifense is not an accomplice.®^ As previously stated, this has been held to apply to detectives or decoys who participate in acts with the view of entrapment.^* It also applies to mere inform- ers.®® It has been held, however, that where the original intent to commit the ofifense charged was induced by the informer, or by persons oth- er than the defendant, it does not apply.®* § 47. Attorneys. — May an attorney act in the double capacity of attorney and witness? The fact that a person acts as counsel in a case does 50. People V. Plath, 100 N. Y. S92; State v. Jackson, 106 Mo. 174, 17 S. W. R. 301; People v. Smith, 98 Cal. 218; Smith V. State, 59 Ala. 104. 51. People V. Barrie, 49 Cal. 324; People v. Noelke, 94 N. Y. 137. 52. People v. Bliven, 112 N. Y. 19; 'Cora. v. Boynton, 116 Mass. 343. 53. People V. Ogle, 104 N. Y. 511 (murderer placed knife in hands of party after the commission of the crime). 54. Com. V. Cohen, 127 Mass. 282 ; Campbell v. Com., 84 Pa. St. 87; People v. Noelke, 94 N. Y. 178. 55. State v. McKean, 36 la. 343; People v. Farrell, 30 Cal. 356. 56. State v. Jansen, 22 Kan. 498; Satmdea-s v. People, 38 Mich. 218; Allen v. State, 40 Ala. 344; United States v. Slinker, 32 Fed. R. 691. COMPETENCY 57 1 not disqualify him as a witness.^^ Courts, how- ever, frown upon the practice of acting in the double capacity of attorney and witness. Upon this point Metcalf, J., says, "The only question that has been argued in this case is, whether the plaintifif's attorney, who acted as counsel at th.e trial, was a competent witness for hi^ client; and we know of no common law authority for ex- cluding his testimony. ... In most cases, coun- sel cannot testify for their clients without sub- jecting themselves to just reprehension. But there may be cases in which they can do it, not only without dishonor, but in which it is their duty to do it. Such cases, however, are rare ; and whenever they, occur, they necessarily cause great pain to counsel of the right spirit. "^^ An attorney, however, is not permitted to dis- close confidential communications between him- self and client. This subject is treated in the next chapter. § 48. Judges. — May a judge act in the double capacity of c^urt and witness ? The functions of a judge and those of a witness are so incon- sistent it would seem quite improper for a judge to act as a witness in a cause pending before him. And this view is very generally sustained by the "57. Follansbee v. Walker, 72 Pa. St. 228; Taylor on. EvM. , (4th ed.), Vol. II, § 1240. 58. Potter y.'inhab. of Ware, 55 Mass. 519; Abbott v. Strib- ben, 6 la. 190, 195 (attorney held a competent witness to prove the loss, of a promissory note sued on, and which was in his possession when lost). 572 THE LAW OF EVIDENCE courts of review^^^ f>en where the defendant in a criminal case has made a voluntary confession to the presiding judge the latter may not testify to it.*"* Mr. Stephen says that "it is doubtful whether a judge is compellable to testify as to anything which came to his knowledge in court as such judge."®^ Mr. Rapalje says', "If the judge sits alone, he cannot be sworn at all; and if he be one of several judges, he ought not to be, un- less he leaves the bench during the trial. "®^ This view is sustained by Mr. Tayloi^.®^ It has been held, however, that although the court consists of several judges, if one of them is permitted to testify against objection the judgment will be set aside.** But even in the case of a single pre- siding judge he may subsequently testify to facts which occurred before him at a former trial. ®^ Thus, a judge or justice of the peace may testify to what a given witness swore to before hirri at 59. Randall v. Wadsworth, 130 Ala. 633, 31 So. R. S5S; Shock- ley V. Morgan, 103 Ga. 156, 29 S. E. R. 694; McMillan v. Andrews, 10 Ohio St. 112; State v. DeMalo, 69 N. J. L. 590, 55 Atl. R. 644; Rogers v. State, 60 Ark. 76, 29 S. W. R. 894. 60. People v. Pratt, 133 Mich. 125, 94 N. W. R. 754, 67 L. R. A. 923. 61. Stephen Dig. of Evid., art. 111. See also, R. v. Gazard, 8 Car. & P. 595.- 62. Rapalje on Wit., § 45. 63. Taylor ■aa Evid. (10th ed.), § 1379. 64. People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349. 65. State v. Hindman, 159 Ind 586, 65 N. E. R. 911; State V. Houghton, 45 Ore. 110, 75 Pac. R. 887. COMPETENCY 573 I a former trial.®® In a few states there are stat- utes which expressly make judges competent witnesses. These statutes contain provisions fof postponing the trial and having it take place be- fore another judge. Of course, a judge may not be compelled to disclose what occurred in the consulting room ; nor may he be compelled to state reasons for his decisions."^ § 49. Grand jurors. — It has been held that grand jurors are incompetent to testify to state- ments made to them in the jury room by a wit- ness, where the purpose is to impeach his credi- bility.®* But this is not the modern rule. As said by Mr. Wharton, "It was at one time supposed that a grand juror was required, by his oath of secrecy, to be silent as to what transpired in the jury room ; but it is now held that such evidence, whenever it is material to explain what was the issue before the grand jury, or what was the testimony of particular witnesses, will be re- quired."®^ Where a person is prosecuted for per- jury, or for any other crime, committed in the presence of the grand jury, members of that 66. Zitske V. Goldberg, 38 Wis. 216. 67. Noland V. People, 33 Colo. 322, 80 Pae. R. 887. 68. Inlay v. Rogers, 7 N. J. L. 347. 69. 1 Wharton on Evid., § 601. See a,lso to same effect, State V. McP'herson, 114 la. 492, 87 N. W. R. 421; State v. Wood, S3 N. H. 484; Com. v. Mead, 12 Gray (Mass.) 167, 71 Am. Dec. 741 ; State v. Browm, 26 Oreg. 147, 41 Pac. 1042; Gordon v. Com., 92 Pk. St. 216, 37 Am. Rep. 672; United States v. Reed, 2 Blatch. (U. S.) 435; Way v. Butterworth, 1G6 Mass. 75. 574 THE LAW OF EVIDENCE , body are competent witnesses.'"' And they are competent to testify to the fact that certain per- sons did, or did not, testify before them.^^ More- over, they are competent to testify that certain witnesses acted suspiciously when testifying be- fore themJ^ They are not competent, however, to testify who voted in favor of the bill of indict- ment, or who voted against it.''^ Nor are they competent to testify to the evidence upon which it was founded/* Moreover, on the ground of public policy, it is not allowable for grand jurors to impeach their finding or to explain their vote.'''^ Thus, they are incompetent to testify that certain witnesses who testified before them were not sworn; or that the evidence upon which the indictn^ient was based was insuffic- ientJ" Some decisions hold that, upon a motion to quash an indictment, a grand juror is a com- petent witness to testify that less than the re- quired number of grand jurors supported the 70. Izer V. Stat< 11 Md. 110, 26 Atl. R. 282; State v. Fassett^ 16 Conn. 457; Peopk v. Young, 31 Cal. 563. 71. People V. Northey, 11 Cal. 618, 19 Pac. R. 865, 20 Pac. R. 129; Com. v. Hill, 11 Gush. (Mass.) 137. 72. State V. Bnoughton, 7 Ired. (N. C.) 96, 45 Am. Dec. 507. 73. Com. V. Hill, supra; State v. Beebe, 17 Minn. 241 ; State V. Fassett, supra. 74. Cases cited in foot-note 73. 75. State v. Oxford, 30 Tex. 428; Hall v. State, 134 Ala. 90, 32 So. R. 750; Gordon v. Com. 92 Pa. St. 216, 37 Am. Rep. 672; State v. Fassett, supra. 76. Cases cited in foot-note 75. COMPETENCY 575 indictment." It is probable, however, that the weight of authority is to the contrary.''® As to admissions and confessions made before the grand jury, members of that body are competent witnesses. ''* Generally speaking, however, the proceedings of grand jurors in the jury room are privileged, not' only as to the grand jurors them- selves, but also as to their stenographers and the district attorney. § 50. Petit Jurors. — In a decision rendered nearly eighty years ago, Bullard, J., says, "It is every day's practice to swear jurors to give evi- dence to their fellow jurors."®" While there is no rule Of the common law which renders a petit juror an incompetent witness, for a petit juror to serve as a witness in a cause in which he is empaneled is now practically unknown.®^ It is to be observed, however, that the oath admin- istered to petit jurors requires them to base their verdict solely upon the evidence in the case. It would be improper, therefore, for a petit juror to n. Cam. V. Smith, 9 Mass. 107; Low's Case, 4 Me. 439, 16 Am. Dec. 271 and note. 78. State V. Oxford, supra; State v. Baker, 20 Mo. 338 ; R. V. Marsh, 6 Adol. & Ellis 236. 79. Hinshanv v. State, 147 Ind. 334; Kirk v. Garrett, 84 Md. 383; United States v. Porter, 2 Crandh, C. C. 60. 80. Rondeau v. New Orleans Imp. Bank Co., IS La. 160 (1840). 81. Savannah, etc., Ry. Co. v. Quo, 103 Ga. 125; Howser v. Com., 51 Pa. St. 332; Patterson y. Boston,' 20 Pick. (Mass.) 159; Wharton v. State, 45 Tex. 2; Rex. v. Ros- ser, 7 Car. & P. 646. 576 THE LAW OF EVIDENCE make use of knowledge he may possess, but. which has not been given in evidence, in render- ing his verdict. Moreover, it would also be im- proper for him to communicate such knowledge to his fellow jurors. If such knowledge is to be used at all in determining the verdict he should be duly sworn and examined the same as other witnesses.*^ A petit juror is a competent witness at a sub- sequent trial to testify to relevant facts which occurred at a former trial where he served a^ juror. Thus, he may testify at the subsequent trial as to claims allowed by the jury at the form- er trial; or, as to testimony given by witnesses.^* While, as a general rule, the proceedings of petit jurors which occur in the jury room are privileged, and not subject to investigation, yet, based tipon grounds of public policy, there are some exceptions to this rule. The decisions upon this question, however, are not harmon- ious. As a general rule, the deliberations of petit jurors in the jury room are inviolable, and the courts refuse to allow them to be disclosed.^* Even acts of misconduct in the jury room, by the jurors themselves, which tend to impeach their 82. Wood River Bank v. Dodge, 36 Neb. 708; Anderson v. Barnes, 1 N. J. L. 203 ; R. v. Rosser, 7 Car. & P. 648. 83. Piatt V. St. Clair, 6 Ohio 227. 84. Woodward v. Leaviitt, 107 Mass. 453 ; Sheppard v. Imhab. of Camdeo, 82 Me. 535, 20 Atl. R. 91 ; Com. v. Meserve, 156 Mass. 61, 30 N. E. R. 166. COMPETENCY -. ' 577 verdict, may not, as a general rule, be shown. *^ The three chief reasons for this rule are as fol- lows: (i) It prevents jurors from defeating by evidence their own solemn acts under oath. (2) It prevents a dissatisfied. juror from destroying a verdict to which he had solemnly assented. (3) It prevents the tampering with jurors after they have rendered their verdict.*® In harmony with this rule courts have refused to admit evi- dence of a petit juror that the verdict was deter- mined by lot f or by taking ah average.*® They also have refused to admit evidence of a petit juror that a fellow juror was intoxicated;*^ or that all of the jurors did not concur in the ver- dict;^" or that a juror misunderstood the court's 85. Siemsen v. Ry. Co., 134 Cal. 494, 66 Pac. R. 672 (im- proper view) ; Mattox v. United States, 146 U. S. 140 (improper use of newspaper and other documents); Peo- ple V. Deegan, 88 Cal. 662, 26 Pac. R. SOO (intoxication of juror) ; Rowe v. Canny, 139 Mass. 41, 29 N. E. R' 219 (improper statements of facts) ; Com. v. White, 147 Mass. 76, 16 N. E. R. 707 (hostility and bias) ; Sharp v. Merri- man, 108 Mich. 454, 66 N. W. R. 372 (hostility and bias). 86. 3 Graham & Waterman on New Trials 1428. 87. Haun. v. Wilson, 28 Ind. 296 ; Tucker v. So. Kensiagton, 5 R. I. 558; Sawyer v. Hannibal Ry. Co. 37 Mo. 240; Stra- ker V. Graham, 4 M. & W. 721. 88. Houk V. Allen, 126 Ind. 568, 25 N. E. R. 897; Phillips v. Stewart, 69 Mo. 149; Roy v. Gomeys, 112 111. 656; Dorr V. Flemto,'l2 Pick. (Mass.) 520. 89. Heller v. People, 22 Colo. 11, 43 Pac. R. 124; People v. Deegan, supra. 90. State V. McNamara, 100 Mo. 100, 13 S. W. R. 938; Hall- enbeck v. Garst, 96 la. 509, 65 N. W. R. 417; People v. Kloss, 115 Cal 567, 47 Pac. R. 459. 578 THE LAW OF EVIDENCE charge;®^ or that a juror, who was in ill health, acquiesced in the verdict to be relieved from confinement.®^ As previously stated, however, the decisions upon this question are not harmon- ious. According to the early English rule the affidavit of a petit juror was admissible even to impeach his verdict.** This continued to be the rule down to Lord Mansfield's time when he overturned it. Moreover, he held that for jurors to base their verdict upon chance was a "very high misdemeanor."®* Yeates, J., says, "I am op- posed to penetrating into the recesses of a jury room through the instrumentality of jurors who are kept together until they have agreed upon their verdict."®^ The rule of exclusion estab- lished by Lord Mansfield has obtained in Eng- land from his day to the present. "The general rule is, that affidavits of jurors are not admissi- ble either to support or to impugn their ver- dict."®® "It is entirely against public policy, to allow a juryman to make affidavit of anything that passes in agreeing to a verdict."®'' "If the affidavits of jurors are to be taken as a state- 91. Schukz V. Catlin, 78 Wis. 611, 47 N. W. R. 946; Christ V. City of Webster, 105 la. 119, 74 N. W. R. 743. 92. Fitzgerald v. Qark, 17 Mcmt. 100, 42 Pac. R. 273, 52 Am. St. Rep. 665. 93. Ash V. Ash, Comberb 357 (1697). 94. Vaise v. Delaval, 1 T. R. 11, K. B. (1785). 95. Cluggage v. Swan, 4 Binn. 150, 155. 96. Standewicbe v. Hopkins, 2 D. & L. 502. 97. Straker v. Graham, 7 Dowl. 223, 225, 8 L. J. N. S. (Exch.) 86. COMPETENCY ~579 ment of something- that passed in the jury rotfOQi they are clearly not admissible."®* And LdM^ Mansfield's rule, is in harmony with the great weight of American authority.^^ "This rule ex- cludes afifidavits to show mistake or error of the jurors in respect to the merits, or irregularity or misconduct, or that they mistook the effect of their verdict, and intended something diffjer- ent.""" I 51. Same. The Iowa rule. — In a few states, however, including Iowa, Kansas, Illinois, Ne- braska, California, Arkansas, Texas and Ten- nessee, the rule is less rigid. ^ This less rigid rule is also sanctioned by the federal courts. Accord- ing to this rule, "The affidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial, or in the jury-room, which does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent or at- 98. Raphq^el v. Bank of England, 17 C. B. 161, 174. 99. Cook V. Castner, 9 Cu§h. (Mass.) 278; Com. v. White, 147 Mass. 76, 16 N. E. R. 707; Johnson v. Parrotte, 34 Neb. 26; Sharp v. Merriman, 108 Mich. 454, 66 N. W. R. 372; Ma'ttox v. United States, 146 U. S. 140. 100. Dakymple v. Williams, 63 N. Y. 363, 20 Am. Rep. S44. 1. Wright V. 111. & Miss. Tel. Co., 20 la. 19S ; State v. Wha- len, 98 la. 662, 68 N; W. R. 554; Atchison, T. & S. F. Ry. Co. V. Bayes, 42 Kan. 609, 32 Pac. R. 741 ; Harris v. State, 24 Neb. 803, 40 N. W. R. 317; Allison v. People, 45 III. 37 ; Polhemus v. Heiman, 50 Cal. 438 (statutory) ; Fain V. Goodwin, 35 Ark. 109 (statutory) ; Anschicks v. State, 6 Tex. App. 524 (statutory); Galvin v. State, 6 Cold. (Tenn.) 283. 580 THE LAW OF EVIDENCE torney; that witnesses or others -conversed as to the facts or merits of the cause out of court in the presence of the- jurors-; that the, verdict was de- termined by aggregation and average, or by lot, ■or game of chance, or other artifice, or improper manner; but such affidavit, to avoid the' verdict,^ may not -be received to show any matter which •does essentially inhere in the verdict itself, as that he misunderstood the instructions of the court, the statement of the witnesses, or the pleadings in the case; that he was imduly infiu- enced by- the statements of his fellow-jurors, or mistaken in his calculations or judgment, or oth- er matters resting alone in the juror's breast."^ This is knowai as the Iowa rule. Mr. Freeman, the compiler and anriotator of "American -Deci- sions," etc., in commenting upon this rule, says : "The rule, as thus adopted by the supreme court of Iowa, seems to be the one best adapted to se- cure the iinpartial administration of justice by jury trials. It commends itself for the protec- tion it affords litigants against a verdict obtained by unlawful means, arid at the same time it en- shrines the deliberations of juries in the jury room with that mantle of secrecy which the. policy of the law has always designed to secure, in order that a verdict may be the united judg- ment of all sworn to try the cause. Much as- we might be inclined, however, to adopt this as the better rule, were we permitted to decide, we must yield our opinions to the great weight of 2. Wright V. 111. & Miss. Tel. Co., supra. COMPETENCY 581 modern authority, which is undoubtedly op- posed to the admission of affidavits of jurors in any ease to show such misconduct on their part as will vitiate their verdict" (citing numerous authorities).* It has been held that evidence is inadmissible to show misconduct of the bailifif in the jury room.* Some courts, however, ^have held the contrary.'' Testimony that a party to the suit, or his agent, sought to influence the jury has b^en held admissible. And, as a general rule, the testimony of petit jurors is admissible to sup- port their verdict where their conduct has been assailed." An important principle which is often lost sight of is, the parol evidence rule is applicable to verdicts as well as to other classes of writings. "Under this principle the testimony or affidavit of a petit juror is not admissible to prove his consultations or motives which resulted finally in his written verdict. It is admissible, however, to prove the precise scope of the issues upon 3. 24 Am. Dec. 477. 4. Sanitary District v. Culberton, 197 111. 385, 35 N. E. R. 723. 5. Heller v. People, 22 Colo. 11, 43 Pac. R. 124; Nelms v. State, 21 Miss. 500, S3 Am. Dec. 94. 6. Spies V. People, 122 111. 1, 264, 12 N. E. R. 865, 17 N. E. R. 898, 3 Am. St. Rep. 320; Woodward v. Leavitt, 107 Mass. 453, 9 Am. Rep. 49 (many cases reviewed) ; People V Murray, 94 Cal. 212, 29 Pac. R. 494; Harding v. V^^it- ney, 40 Ind. 379; State v. Underwood, 57 Mo. 40; State V. Gay, 18 Mont. 51, 44 Pac. 411. 582 THE LAW OF EVIDENCE Avhicli the verdict-was based; or to prove a mis- take on the part of the foreman in declaring the verdict ; or a mistake on the part 'of the clerk in recording it ; or to show the invalidity of the ver- dict owing to the misconduct of the jurors in de- termining it."'' § 52. Arbitrators. — Arbitrators exercise func- tions of both court and jury, and concerning some subjects they are incompetent to testify. Thus, except in case of fraud or mistake, arbi- trators are not competent witnesses to impeach their award.^ An arbitrator is incompetent to testify either to his own misconduct,® or that of his associates.^" He is also incompetent to tes- tify that he did not actually agree to the award.^^ He may testify to circumstances under which the award was made,^^ but may not state the grounds of it.^* He is competent to testify to matters material to the issue in a proceeding to ' enforce the award,^* or to testify that a given claim was, or was not, taken into consideration 7. Hughes on Evidence 302. 8. Packard v. Rejmolds, 100 Mass. 153 ; Ellison v. Weathers, 78 Mo. 115; Corrigan v. Rockefeler, (>1 Ohio St. 354, 66 N. E. R. 95. 9. Claycomb v. Butler, 36 111; 100. 10. Tucker v. Page, 69 111. 179. 11. Campbell v. Wesitern, 3 Paige (N. Y.) 124. 12. Woodbury v. Nortliy, 3 Me. 85, 14 Am. Dec. 214. 13. Withington v. Warren, 10 Met. 431. 14. Graham v. Graham, 9 Pa. St. 254, 49 Am. Dec. 557. PRIVILEGED COMMUNICATIONS 583 in making the award. ^® He may testify in sup- port of th.e award/® and also to acts or declara- tions of the parties which occurred during the investigation.^'' 15. Hale V. Httse, 10 Gray (Mass.) 99. 16. Stone v. Atiwood, 28 111. 30. 17. Graham v. Graham, supra; Calvert v. Friebus, 48 Md. 44. CHAPTER II. Privileged Communications. § I. Definition. — Privileged communications are those whose disclosure upon the witnes.s stand is not compellable, or even allowable, owing to certain confidential relations existing between the parties. The grounds of the ex- clusion are public policy and necessity. § 2. Fiindamental conditions. — The four fun- damental conditions which are essential to the existence of privileged communications are as follows: (i) The communications must orig- inate in a confidence that they will not be dis- closed. (2) This element of confidentiality must be essential to the full and satisfactory main- tenance of the relation between the parties. (3) The relation m.ust be one which in the opinion of the community ought to be sedulously fostered. (4) The injury that would inure to the relation by the disclosure of the communications must be • 584 THE LAW OF EVIDENCE greater than the benefit thei-eby gained for the correct disposal of litigation.^ § 3. The law of the forum governs. — Whether given communications are privileged or not is determined by the law of the forum. Thus, where the question arises in a federal court it is determined by the law of the state in which the court sits.^ And where the examination of a witness occurs* under a commission issued out of a court of a foreign jurisdiction the law of the state where the examination is made governs.* § 4. General classification.^Privileged com- munications are divided into^ thfe following four classes: (i) Professional communications. (2) Political communications. (3) Social communi- cations. (4) Judicial communications. These four classes are next discussed in the order given. § 5. Professional communications. — At the common law the only professional communica- tions that were privileged were those between attorney and client. An attorney may not dis- close, communi-cations made to him confidentially ' by his client in the course of his professional em- ployment without the client's consent.* The 1. Wigmore on Evid,, §2285; 40 Cyc. 2353. . 2. Conneticut Mut. L. Ins. Co. v. Union Trust Co., 112 U. S. 250, S S. Ct. 119, 28 l! ed. 708. 3. Matter of Whklock, ,51 Hun (N. Y.) 351, 3 N. Y. Suppl. 855. 4. Matter of Cunnion, 201 N. Y. 123, 94 N. E. R. 648 ; Lori- mer v. Lorimer, 124 Mich. 631, 83' N. W. R. 609; Sheehan V. Allen, 67 Ka,n. 712, 74 Pac. R. 245; Lauer v. Banning, PRIVILEGED COMMUNICATIONS 585 basis of the rule is public policy. As said by Shaw, C. J., "The law has considered it the wisest policy to encourage and sanction this con- fidence by requiring that on such facts the mouth of the attorney shall be forever sealed."* § 6. Effect of the rule. — The rule secures to the client complete freedom in communicating to his attorney all the facts and circumstances re- lating to his case, and it enables his attorney to acquire a complete understanding of all- those facts and circumstances.® An injunction of secrecy by the client is not essential.'' Moreover, want of knowledge by the client of the existence of the privilege is immaterial.^ § 7. Scope of the rule. — The rule is confined to cases which embody the principle upon which it is based.^ As said by Buller, J., "The privilege is confined to the case of counsel, solicitor and at- torney, and it must be proved that the informa- tion was communicated to the witness in one of those characters."^" But while the rule is strict- ly applied courts will not permit it to be cun- ningly evaded. ^^ 140 la. 319, 118 N. W. R. 446; Smoot v. Judd, 161 Mo. 673, 61 S. W. R. 84 Am. St. Rep. 738. 5. Hatton V. Robinson, 31 Mass. 416, 422. 6. Hymati v. Grant, 102 Tex. SO, 112 S. W. R. 1042.' 7. McLean v. Longfellow, 32 Me. 494, 54 Am. Dec. 599. 8. McLellan v. Longfellow, supra. 9. Phillips V. Chase, 201 Mass. 444, 87 N. E. R. 755, 131 Am, St. Rep. 406. 10. Wilson V. Rastall, 4 T. R. 753. 11. Henry v. Buddecke, 81 Mo. App. 360. 586 THE LAW OF EVIDENCE § 8. Same. Rule applicable to intermediaries. — The rule is applicable not only to attorneys within the scope of their employment as such, but also to persons whose intervention is essen- tial. Thus, it is applicable to interpreters,^^ clerks,^^ agents^* or other intermediaries^* who are essential parties to the communications. It does not apply, however, to law students who are studying in law offices. ^^ It is applicable not only to confidential communications between the client and an agent of the attorney,^'' but also to those between the attorney and an agent of the client.^* Thus, it is applicable to communica- tions by a Avife to her husband's attorney where she acts as her husband's agent. ^^ It is also ap- plicable to communications between an officer of a corporation and the attorney for the corpora- tion.20 § g. Purpose of the communication. — The purpose of the communication, to come within 12. Hawes v. States, 88 Ala. 37, 7 So. R. 302. 13. Hilarg v. Minneapolis St. Ry. Co., 104 Minn. 432, 116 S. N. W. R. 933 ;. Hawes v. State, supra. 14. Hawes v. States, supra; Com. v. Best, 180 Mass. 492, 62 N. E. R. 748. 15. Hawes v. State, supra. 16. Barnes v. Harris, 61 Mass. 576. 17. Hawes v. State, supra. 18. Indianapolis v. Scott, 72 Ind. 196; Philadelphia Fire Assoc. ~ V. Flemin-g, 78 Ga. 733, 3 S. E. R. 420. 19. Leyner v. Leyner, 123 la. 185, 98 N. W. R. 628. See also, Scott V. Ives, 22 Misc. (N. Y.) 749, 51 N. Y. Suppl.-49. 20. 'Ex parte Abbott, 7 Montreal Legal News, 318. PRIVILEGED COMMUNICATIONS 58/ the rule of privilege, must be to seek legal ad- vice. Where the services performed by the at- torney are merely to act as a notary in taking an acknowledgement the rule does not apply.^^ And it has been held that where an attorney acts, merely in the capacity of conveyancer there is no exemption.^^ Thus, the mere fact that an at- torney drew a deed for a client is not privileg- ed.*^ On the other hand it has been held that the rule of privilege does apply to communica- tions between attorney and client, made while the attorney is engaged in drawing a deed,** art assignment of a mortgage,*^ an affidavit,*** an in- surance policy,*' or a power of attorney,*^ pro- vided the statements have a material bearing upon the subject matter involved. Where a per- son submits to an attorney an oral or written statement of actual facts and solicits an opinion 21. Ilukin V. Halderson, 24 Ind. App. 645, 57 N. E. R. 254;. .Quitman v. Daggs, 50 Mo. App. 280. 22. Hatton v. Robinson, 31 Mass. 416, 422; De Wolf v. Strader, 26 111. 225, 79 Am. Dec. 371. 23. Potter v: Barringer, 236 111. 224, 86 N. E. R. 233 ; Brem- ens V. Hall, 131 N. Y. 160, 29 N. E. R. 1009; In re Down- ing, 118 Wis. 581, 95 N. W. R. 876; Conway v. Rock, 139" la. 162, 117 N. W. R. 273. 24. Parker v. Canter, 4 Munf. (Va.) 273, 6 Am. Dec. 513;. Barry v. Corille, 7 N. Y. S. 36. 25. Moore v. Bray, 10 Pa. St. 519. 26. Williams v. Fitch, 18 N. Y. 546; Hermandez v. State, 18: Tex. App. 134, 51 Am. Rep. 295. 27. Freeman v. Brewster, 93 Ga. 648, 21 S. E. R. 165. 28. Barak of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) 595, 49^ Am. Dec. 189. 588 THE LAW OF EVIDENCE thereon, both the statement of facts^" and the opinion are' privileged.^" But w^here the state- ment is merely fictitious the rule is otherwise.*^ In a contest over a will, the attorney who drew it, and was a subscribing witness, may testifiy to the circumstances immediately surround- ing its execution; but beyond this he may not disclose professional communications between himself and the deceased.*^ He may not disclose information acquired from documents submitted to him for inspection or custody. ^^ It has been held that an attorney who draws a will may not even disclose the name of the party who instruct- ed him to do so.^* But this is doubtful. He may not disclose instructions given him by a client to enable him to carry out the provisions of the lat- ter's will.^® While communications whose purpose is illegal are not privileged, yet communications made to an attorney in his professional capacity after the commission of a crime are privileged.^'' 29. Bacon v. Frisbie, 80 N. Y. 394, 36 Am. Rep. 627 and note. 30. Hughes v. Biddulph, 4 Russ. 190. 31. Haley v. Bank, 21 Nev. 127. 32. Re Bedlow's Will, 67 Hun (N. Y.) 408, SI N. Y. State Rep. 782. 33. Mathews v. Haagland, 48 N. J. Eq. 455. 34. Re McCarthy's Will, 48 N. Y. State Rep. 315. 35. Re Gagan's Will, 66 Hun (N. Y.) 632, 49 N. Y. State Rep. 366. 36. Matter of Coleman, 111 N. Y. 220. 37. State v. James, 34 S. C. 49; Alexander v. United States, • 138 U. S. 353. PRIVILEGED COMMUNICATIONS 589 Communications by mail between attorney and client, that are confidential in their nature, are privileged. ^^ Also papers executed by them in connection with the professional business.^* Where the client testifies in his own behalf he may be asked if he communicated to his attorney the statements made by him on the stand.*" While the attorney is precluded from disclos- ing any information acquired professionally, the rule is othervvise as to information acquired by observation or otherwise, where such informa- tion is not acquired within the scope of the pro- fessional relation. The mere fact that the infor- mation relates to, or involves, the act of his client does not render the information privi- leged.*^ As regards communications between a husband and an attorney the wife of the former should not be compelled to disclose them.*^ In a breach of promise case the defendant can be compelled to disclose whether or not he turned over to his attorney all the letters he received from the plaintiff.** Where an attorney for a corporation becomes one of its directors he may 38. Selden v.. State, 75 Wis. 271. 39. Genet v. Ketcham, 62 N. Y. 626. 40. Barker v. Kuhn, 38 la. 395 ; State v. White, 19 Kan. 445, 27 Am. Riep. 137 arid note. 41. State V. Stone, 65 N. H. 124, 18 Atl. R. 654. See also, Kaut V. Kessler, 114 Pa. St. 603, 7 Atl. R. 586; Chilli- cothe Ferry Road & Bridge Co. v. Jameson, 48 111. 281. 42. State v. Bell, 212 Mo. Ill, 111 S. W. R. 24. 43. Chellis v. Chapman, 125 N. Y. 214, 26 N. E. R. 308, 11 L. R. A. 784. 590 THJi LAW OF EVIDENCE be compelled to disclose his knowledge of its affairs." Where a married woman consults her husband's attorney professionally in regard to' her separate estate the communications are priv- ileged. In such case the latter is regarded as the attorney of both.*^ Where a cHent and a third person consult an attorney in regard to the law applicable to a transaction pending between them the communications are privileged as to all three persons.*^ Where an attorney acts merely in the capacity of abstracter of titles there is no exemption.*'' But where he acts in a profes- sional capacity he may not disclose communica- tions which relate even to the drafting of an in- strument.*^ An attorney may not disclose professional ad- vice his client has received from him.*^ He may testify to his client's mental condition,'" espe- cially when his knowledge thereof is acquired outside of the professional relation.'^ But he 44. Matter of Robinson, 140 N.' Y. App. Div. 329, 125 N. Y. Suppl. 193: 45. Scranton v. Stewart, 52 Ind. 68. 46. Hartness v. Brown, 21 Wash. 655, 59 Pac. R. 491. 47. Stallings v. HuUum, 79 Tex. 421, 15 S. W. R.'677. 48. Gruber v. Baker, 20 Nev. 453, 23 Pac. R. 859, 9 L. R. A. 302; Hollenbeck v. Todd, 119 111. 543, 8 N. E. R. 829; Barry v. CoviUe, 129 N. Y. 302, 29 N. E. R. 307. 49. Higbee v. Dresser, 103 Mass. 523 ; People v. Hillhouse, 80 Mich. 580, 45 N. W. R. 484; Dewey v. Komar, 21 S. D. 117, 110 N. W. R. 90. 50. Boyal v. Robinson, 129 Wis. 567, 109 N. W. R. 623 ; Shee- han V. Allen, 67 Kan. 712, 74 Pac. R. 245. 51. Sheehan v. Allen, supra. PRIVILEGED COMMUNICATIONS 59I may not disclose confidential matters, knowl- edge of which he acquired during a consultation, even when such matters constitute the founda- tion of his opinion. ^^ He may be compelled to testify that he rendered professional services for a given person,^^ concerning a certain matter.^* And an aflldavit prepared by him for his client is not privileged. ^^ § ID. Communications made to third party. — Where communications are made between an attorney and a third party, concerning the busi- ness of the attorney's client, they are not privi- leged.^* Moreover, this rule applies even where the third party is a witness of the client.^'' But communications between two or more attorneys, who act on behalf of the same client in regard to the same rights, liabiUties, etc., are privi- leged.^^ ■ § II. Retainer fee. — It has been held that where a retainer fee is not contemplated com- 52. Sheeljan v. Allen, supra. 53. In re Seip, 163 Pa. St. 423, 30 Atl. R. 226, 43 Am. St. Rep. 803; Alger v. Turner, 105 Ga. 178, 31 S. E. R. 423; White V. State, 86 Ala. 69, S So. R. 674. 54. Elliott V. Elliott, (Neb. 1902), 92 N. W. R. 1006. 55. In re Provin, 161 Midi. 28, 125 N. W. R. 743. 56. King V. Ashley, 179 N. Y. 281, 72 N. E. R. 106; Herman V. Schlesinger, 114 Wis. 382, 90 N. W. R. 460. 57. Rockford v. Falver, 27 111. App. 604; Lalance, etc., Mfg. Co. V. Haberfflan Mfg. Co., 57 Fed. R. 563. Contra, Rose- bud V. State, SO Tex. Cr. R. 475, 98 S. W. R. 858. 58. Missouri, etc., Ry. Co.. v. Williams, 43 Tex. Civ.- App. 549, 96 S. W. R. 1087 ; Jones v. Nautahala Marble, etc., Co. 137, N. C. 237, 49 S. E. R. 94. 592 - THE LAW OF EVIDENCE munications between attorney and client are not privileged.^® But this view is erroneous and not in harmony with the general rule.®" Nor is it essential that any fee be charged or received.®^ It is to be observed, however, that the fact that no fee was contemplated or paid would tend to show that the relation of attorney and client did not exist. °^ § 12. Communications before or after the re- lation. — To render this class of communications privileged, the relation of attorney and client must exist at the time the communications are made, or be in contemplation of the parties at that time. Those made either before,^* or after,®* are not privileged. But where they are made by a prospective client, whose purpose is to employ the attorney or obtain legal advice, and finally the attorney declines a retainer, or the prospective client, decides not to employ the 59. De Wolf V. Strader, 26 111. 225. 60. State v. Herbert, 63 Kan. 516, 66 Pac. R. 235; State v. Snowden, 23 Utah, 318, 65 Pac. R. 479; Denver Tramway Co. V. Owens, 20 Colo. 107, 36 Pac R. 848. 61. Sbeehan v. Allen, 67 Kan. 712, 74 Pac. R. 245 ; Bruley v. Garvin, 105 Wis. 625, 81 N. W. R. 882, 1(> Am. St. Rep. 923 ; Mack v. Sharp, 138 Mich. 448, 101 N. W. R. 631, 5 Am. Cas. 109. 62. Thompson v. Kilbome, 28 Vt. 750, 67 Am. Dec. 742. 63. State v. Smith, 138 N. C. 700, 50 S. E. R. 859 ; Jennings V, Sturdevant, 140' Ind. 641, 40 N. E. R. 61. 64. State v. Herbert, 63 Kan. 516, 66 Pac. R. 235; In re Turner, 167 Pa. St. 609, 31 Atl. R. 867; Hanson v. Kline, 136 la. 101, 113 N. W. R. 504. PRIVILEGED COMMUNICATIONS 593 attorney, the communications are privileged.®^ Moreover, the fact that the attorney is subse- quently employed by the adverse party does not change the rule.®* § 13. Limitations of the rule. — Communica- tions to be privileged must come within the scope of professional intercourse.®^ Communi- cations between an attorney and another person, where the former acts merely as a friend, are not privileged.®^ Nor those which are collateral to the subject matter of the discussion.®^ Nor those which relate merely to the existence of a fact.''" Communications made to another, in the erroneous belief that he is an attorney, are not privileged;''^ unless the communications are pro- cured by fraud. ^^ Information acquired by an 65. Surface v. Bentz, 228 Pa. St. 610, 11 Atl. R. 922; Thorp V. Goewey, 85 III. 611; Hanson v. Kline, 136 la. 101, 113 N. W. R 504; Peek v. Boone, 90 Ga. 769, 17 S. E. R. 66. (£. Cross V. Riggins, 50 Mo. 335. 67. In re Turner's Es.tate, 167 Pa. St. 609; Union Pacific Ry. Co. V. Day, 68 Kan. 726. See also, note, 66 Am. St. Rep. 220. 68. Sargent v. Johns, 206 Pa. St. 386, 55 Atl. R. 1051 ; State V. Swafford, 98 la. 362, 67 N. W. R. 284; McDonald v. McDonald, 142 Ind. 55, 41 N. E. R. 336. 69. State v. Mevherter, 46 la. 88. 70. Piano M'fg. Co. v. Frawley, 68 Wis. 577, 32 N. W. R. 768. 71. Barnes v. Harris, 7 Cush. (Mass.) 576, 54 Am. Dec. 734; Sample v. PVost, 10 la. 266. 72. State v. Russell, 83 Wis. 330, 53 N. W. R. 441; People v. 'Barker, 60 Mich. 277, 27 N. W. R. 539, 1 Am. St. Rep. 501. 594 THE LAW OF EVIDENCE attorney from sources other than his client are not privileged."* § 14. Rule where several persons employ the same attorney. — Where several persons employ the same attorney in regard to the same matter their communications are privileged with respect to a common adversary, or third persons f* but not as among themselvesJ^ In the latter case they are not privileged even when the interests of the several parties are adverse to each otherJ* §15. Communications with a patent solicitor. — Communications with a patent solicitor who is not an attorney are not privileged.''^ But where a solicitor of patents acts in the capacity of assistant to counsel, rather than in the capac- ity of witness, communications between him and the counsel, pertaining to the litigation, are priv- ileged.''^ § 16. Communications with a judge. — Where a judge undertakes to give legal advice to a per- 73. King V. Tunstall, 124 Ala. 268, 27 So. 420; King v. Ashley, 179 N. Y. 106, 72 N. E. R. 106. 74. Minard v. Stillman, 31 Oreg. 164, 49 Pac. R. 976, 65 Am. St. Rep. 815; Brown v. Moosie Mountain Coal Co., 211 Pa. St. 579, 61 Atl. R. 76. 75. Doheny v. Lacy, 168 N. Y. 213, 61 N. E. R. 255 ; Hanlon V. Doher-ty, 109 Ind. 37, 9 N. E. R. 782. 76. Shove V. Martina, 85 Minn. 29, 88 N. W. R. 254, 412: Holmes v. Bloom'ingdale, 72 N. Y. App. Div. 627, 76 N. Y. Suppl. 182. 77. Brungger v. Smith, 49 Fed. R. 124. 78. Lalance, etc. M'fg. Co. v. Haberman Mfg. Co., 87 Fed. R. 563. PRIVILEGED COMMUNICATIONS 595 son and the latter thereby acquires the confi- dence of the judge and makes a confession to him, the communication is privileged.''^ The basis of this rule is public policy. § 17. Relation of the communicatian to cer- tain matters. — According to some early decis- ions a communication to be privileged must re- late to pending or expecte;d litigation.^" But according to the modern view this is not essen- tial. A communication is privileged if it comes within the scope of the .professional relation. ^^ Ordinarily, the contract between an attorney and client as to the fee to be paid,^^ or the terms of payment,®^ is not privileged. But where a disclosure would tend to fasten a crime on the client,®* or tend to subject him to a civil liabil- ity,®^ the contract is privileged. Thus, where the client was on trial for the larceny of one hun- dred and sixty dollars "of current silver coin of the United States," the trial court erred in allow- ing the defendant's attorney to testify to the kind of money paid him for his professional ser- 79. People V. Pratt, 133 Mich. 125, 94 N. W. R. 752, 67 L. R. A. 923 and note. 80. Wliitinger v. Barney, 30 N. Y. 330, 86 Am. Dec. 385. 81. Root V. Wright, 84 N. Y. 72, 38 Am. Rep. 495 ; Moore v. Bray, 10 Pa. St. 519; Brown v. Butler, 71 'Conn. 576, 42 Atl. R. 654. 82. Strickland V. Capital City Mills,' 74 S. C. 16, 54 S. E. R. ' 220, 7 L. R. A. N. S. 426; Smithwick v. Evans, 24 Ga. 461. 83. Cases cited in foot-note 82. 84. State v. Dawson, 90 Mo. 149, 1 S. W. R. 827. 85. Liggett V. Glenn, 51 Fed. R. i381. 2 C. C. A. 286. 596 THE LAW OF EVIDENCE vices (forty-five dollars in silver and five dollars in gold).^® Again, where a person was sued on his stock subscription, and he and others signed a written contract to pay their attorney a given amount "by us pro rata on the amount of stock subscribed by us as set opposite our names," the contract was privileged, because it tended to sub- ject the defendant to a civil liability." § i8. Matters which are not privileged. — The name and address of the client are not privileged. The attorney may be either permitted or com- pelled, to disclose them.*^ It has been held, how- ever, that an attorney who is not acting in the case may not be compelled to disclose the names of clients whom he previously advised concern- ing matters pertaining to the litigation.*^ Where the client admits on the stand that he communi- cated certain facts to his attorney he may be compelled to state when the communication was made.*" Where his statements to the attorney are to be communicated to a third party they are 86. State v. Dawson, supra. 87. Liggett V. Glemi, supra. 88. Com. V. Bacon, 135 Mass. 521; Mobile, etc., Ry. Co. v. Yeates, 67 Ala. 164 ; United States v. Lee, 107 Fed. R. 702 ; Matter of Malcolm, 129 N. Y. App. Div. 226, 113 N. Y. Suppl. 666. 89. Matter of Shawmut Min. Co., 94 N. Y. App. Div. 156, 87 N. Y. Suppl. 1059. See also, Walton v. Fairchild, 4 N. Y. Suppl. 552, and Schwarz v. Robinson, 129 N. Y. App. Div. 404, 1 13 N. Y. Suppl. 995. 90. Tibbet v. Sue, 125 Cal. 544, 58 Pac. R. 867. PRIVILEGED COMMUNICATIONS 597 not privileged.®^ Nor are they privileged where they are in the nature of a threat.®^ As regards communications between an attor- ney and a client since deceased, they are not privileged where the parties to the suit all claim under the client.^* Thus, in a suit between the devisees of a will, communications made to an attoriiey by the testator concerning the will are not privileged.®* Nor, according to the weight of -authorit}^, where the issue is the validity or -genuineness of the will;"^ especially. where the attorney is one of the subscribing witnesses.*® Nor where the issue is the existence and contents of a lost will, ^'^ or the construction of a will.®* Nor where the attorney is a subscribing witness 91. Scott V. Harris, 113 111. 447; Phillips v. Chase, 201 Mass. 444, 87 N. E. R. 75S, 131 Am. St. Rep. 406; Bruce v. Os- good, 113 Ind. 360, 14 N. E. R. 563. 92. Pearson v. State, 56 Tex. Cr.Cr.607, 120 S. W. R. 1004. 93. Kern v. Kern, 154 Ind. 29, 55 N. E. R. 1004; Phillips v. Chase, 201 Mass. 444, 87 N. E. R. 755, 131 Am. St. Rep, 406. 94. Glover v. Patten, 165 U. S. 394, 17 S. Ct. 411, 41 L. ed. 760. 95. Doberty v. O'Callaghan, 157 Mass. 90, 31 N. E. R. 726, 34 Am. St. Rep. 257, 17 L. R. A. 188 and note; In re Nelson, 132 Cal. 182, 64 Pac. R. 294; In re Loree, 158 Mich. 372, 122 N. W. R. 623. CoTitra, Loder v. Whelphley, 111 N. Y. ' 239, 18 N. E. R. 874. 96. In re Coleman, 111 N. Y. 220, 19 N. E. R. 71; McMaster V. Scriven, 85 Wis. 162, 55 N. W. R. 149, 39 Am. St. Rep. 828; Pence v. Waugh, 135 Ind. 143, 34 N. E. R. 860; In re Mnllin, 110 Ca!. 252, 42 Pac. R. 654. 97. Kern v. Kern, supra. 98. In re Dominici, 151 Cal. 181, 90 Pac. R. 448. ^gS THE LAW OF EVIDENCE to a deed, or other document."® Nor as regards pleadings which have been filed, or have been otherwise made public.^"" Nor as regards the fact of the attorney's employment by the client, and when it began and terminated.^ Nor as re- gards the terms of a compromise made by the attorney to his client's creditors.^ Where third persons overhear communica- tions between an attorney and client the com- munications are not privileged. And this rule ob- tains even when the third persons are eavesdrop- pers.^ § 19. Privilege for client's benefit. Waiver. — The privilege of secrecy is for the benefit of the client and not for the benefit of the attorney. Hence the latter cannot waive it. It can be waived only by the client or by someone who stands in his place.* Dr. Greenleaf says, "The seal of the law, once fixed upon them (the com- munications) remains forever, imless removed by the party himself, in whose favor it was there placed."' This rule, however, is not without ex- ceptions. The personal representative of a de- ceased client may exercise in favor of the latter's 99. Hughes v. Boone, 102 N. C. 137; Robson Kemp, 5 Esq. 52 100. Burnham v. Roberts, 70 111. 19. 1. ShaUgbnessy v. Fogg, IS La. Am. 330. 2. McTavish v. Demimg, Auth. N. P. (N. Y.) ISS. 3. People V. Buohanan, 14S N. Y. 1, 39 N. E. R. 846. 4. 1 Greenl. on Evid., § 243. 5. 1 Greenl. on Evid., § 243. PRIVILEGED COMMUNICATIONS 59O estate the right to waive the client's privilege.® And even an heir at law, in a contest with de- visees, may waive the privilege. Some decis- ions, however, erroneously hold the contrary. As said by Ladd, J., "These decisions are based on the ground that the executor or devisee rep- resents the deceased, and the evidence is offered to sustain the will which it is the policy of the law to maintain. The particular vice in the rea- soning of these cases, in making the distinction between the heir at law and the devisee, is the assumption that the paper in dispute is the will of the deceased . .. . The very purpose of the contest is to determine whether the deceased in fact made a will, who shall be his representative, and who is entitled to his estate. . . . And no one can be said to represent the deceased in that contest, for he could only be interested in having the truth ascertained, and his estate can only be protected by establishing or defeating the instru- ment as the truth so ascertained may require."'" § 20. Communications between physician and patient. — As previously stated, the only class of communications that are privileged at common law are those between attorney and client. But by statute, communications between physician 6. Brooks v. Holden, 175 Mass. 137, 55 N. E. R. 802; Scott. V. Harris, 113 111. 447; Glover v. Patten, 165 U. S. 394. 7. Winters v. Winters, 102 la. 51, 58 (The communications in this case were between a physician and his .patient, but the reasoning is equally appilicable to a case where the communications were between an ottorney and his client). 6oO THE LAW OF EVIDENCE and patie.nt are also privileged. * To render this class of communications privileged three condi- tions must exist, (i) The alleged physician or surgeon must be one in £act.® (2) The profes- sional relation of physician and patient must actually exist between the parties when the com- munications are made.^", (3) The physician must be acting at that time in his professional capa- city." It is not essential that the physician be em- ployed by the patient.^^ Nor is it essential that the patient consent to be treated. The communi- cations may be privileged even though the pat- ient objects to being treated. As said by Vann, 8. People V. Austin, 199 N. Y. 446, 93 N. W. R. 57; Green V. St. Louis Term. Ry. Assoc, 211 Mo. 18, 109 S. W. R. 715; Aspy V. Botkins, 160 Ind. 170, 66 N. E. R. 462; Krapp V. Metro. L. Ins. Co., 143^ Mich. 369, 106 N. W. R. 1107, 114 Am. St. Rep. 651 ; Laner v. Banning, 140 la. 319, 118 N. W. R. 446; In re Young, 33 Utah 382, 94 Pac. R. 731, 126 Am. St. Rep. 843, 17 L. R. A. N. S. 108, 14 Aim. Cas. 596. -9. Wiel-v.CowIes, 45 Hun (N. Y.) 307; People v. De France, 104 Mich. 563, 62 N, W. R. 709, 28 L. R. A. 139. 10. People V. Koerner, 154 N. Y. 355, 48 N. E. R. 730; Siefert V. State, 160 Ind. 464, 67 N. E. R. 100, 98 Am. St. Rep. 340; Griffiths v. Metro. St. Ry. Co., l7l N. Y. 106, 63 N. E. R. 808; Cooley v. Foltz, 85 Mich, 47, 48 N. W. R. 17'6. 11. Bowertv. Bower, 142 Ind. 194, 41 N. E. R. 523. Cases cited in foot-note 10. 12. Batta v. Ry. Co., 124 la. 623, 100 N. W. R. 543 (defend- ant's physician') ; People v. Schuyler, 106 N. Y. 298 (jail physician) ; Meyer v. Supreme Lodge K. P., 178 N. Y. 63, 70 N. E.'R. Ill, 64 L. R. A. 839, 198 U. S. 508; Obermeyer V. Logeman Chair Mfg. Co., 229 Mo. 97, 129 S. W. R. 209. PRIVILEGED COMMUNICATIONS 6oi J., "When one who is sick unto death is in fact treated by a physician as a patient even against his will, he becomes a patient of that physician by operation of law. The same is true of one who is unconscious and unable to speak for him- self. If the deceased had been in a comatose state when the physician arrived the professional relation could not be questioned. . . . The fact of treatment is the decisive test in this case."^* Actual treatment by the physician in his profes- sional capacity is sufficient to render the com- munications privileged.-'* Statements as to collateral matters are not privileged. ^^ The privilege does not extend to matters which are not in their nature confiden- tial, and where their disclosure would not con- stitute a breach of professional confidence.^® Nor does it extend to information acquired by the physician for a purpose other than profes- sional treatment.-''^ Thus, where a physician ex- amines a female child, alleged to have been 13. Meyer v. Supreme Lodge K. P., supra (patient had at- tempted to commit suicide and endeavored to drive the physician away). 14. Cases cited ini foot-note 12. 15. Hoyt V. Hoyt, 112 N. Y. 493, 20 N. E. R. 402. But see Birmingham Ry. Co. v. Hale, 90 Ala. 8, 24 Am. St. Rep. 748. 16. Hamilton v. Crowe, 175 Mo. 634, 75 S. W. R. 389; Siefert V. State, 160 Ind. 464, 67 N. E. R. 100, 98 Am. St. Rep. 340; Hollaway v. Kansas City, 184 Mo. 19, 82 S. W. R. 89. 17. James v. State, 124 Wis. 130, 102 N. W. R. 320; Clark v. State, 8 Kan. App. 782, 61 Pac. R. 814; In re Bruendl, 102 Wis. 45, 78 N. W. R. 169. 602 THE LAW OF EVIDENCE raped, for the purpose of determining whether she had a venereal disease, information acquired by the physician is not privileged.^* Where a physician examines an injured person for the sole purpose of acquiring information to enable him to testify iri a personal injury case the informa- tion so acquired is not privileged.-^® This view, however, has been repudiated.^" But it seems to be supported by the weight of authority .^^ Where a physician treats a woman, or gives her advice, with the view of illegally procuring a miscarriage, the communications are not priv- ileged.^^ But where the treatment or advice is not illegal, as where the purpose of performing the act is to save the woman's life, the communi- cations are privileged.^* Information acquired by a physician, while 18. James v. State, supra. 19. Arnold v. Maryville, 110 Mo. App. 2S4, 85 S. W. R. 107. 20. Doran v. Cedar Rapids, etc., Ry. Co., 117 la. 442, 90 N. W. R. 815. 21. Anderson v. Minneapolis, etc., Ry. Co., 103 Minn. 184, 114 N. W. R. 744 (In this case the p^hysician also treated the injured person professionally, and the court held that the information he acquired was not necessarily privileged). 22. McKenzie V. Banks, 94 Minn. 496, 103 N. W. R. 497; Siefert v. State, supra; Hewett.v. Prime, 21 Wend. (N. Y.) 79. 23. Guptill V. Verback, 58 la. 98, 12 N. W. R. 125 (In this case the court says : "It is not unlawful to produce the mis- carriage of^a pregnant woman, if it becomes necessary to do so in order to save her life."). PRIVILEGED COMMUNICATIONS 603 engaged in treating a patient as to his physical^'* or mentaP^ condition is privileged. In the ab- sence of evidence to the contrary, the profes- ' sional communications in such caseare presumed to be in furtherance of a lawful purpose.^® Thus, in the case last cited, the action was for breach of promise of marriage, and the court refused to allow a physician, called by the defense, to testify that the plaintiff had consulted him with refer- ence to procuring a miscarriage. In this case the court of review said : "It is not unlawful to produce the miscarriage of a pregnant woman if it becomes necessary to do so to save her life." But a physician may be compelled to disclose the fact that a given woman requested him to com- mit an abortion on her.^'' And a physician may be compelled to disclose the fact that another physician requested him to aid in producing an abortion or miscarriage.^^ Where a physician examines a person professionally and gains in- formation thereby, the information so gained is 24. Finnegan v. Sioux City, 112 la. 232, 83 N. W. R. 907; Heusbon v. Simpson, 115 Ind. 62, 17 N. E. R. 261, 7 Am. St. Rep. 409. 25. In re Meyer, 184 N. Y. 54, 76 N. E. R. 920, 6 Ann. Cas. 26; Matter of Sudan 156 Cal. 230, 104 Pac. R. 442. 26. Guptill V. Verback, 58 la. 98, 100, 12 N. W. R. 125. See " also, Post V. State, 14 Ind. App. 452, 42 N. E. R. 1120. 27. Seifert v. State, supra. 28. State v. Smith, 99 la. 26, 68 N. W. R. 428, 61 Am. St. Rep. 219. 604 THK LAW OF EVIDENCE privileged, though he does not treat the pat- ient.^® Upon an inquisition as to the lunacy of a per- son a physician who examines him- upon that point may testify.^" To, show that a person was not in good health during a given time the phy- sician who treated him may tetsify as to the number of visits he made during that period, and their dates. *^ Information of a person's physical or mental condition, gained by a physi- cian either before or after he treated him pro- fessionally, is not privileged. ^^ Where the prose- cuting attorney sends a physician to isxamine a prisoner as to his sanity the information acquired by the physician is not privileged.^^ But where a physician, while serving a person in a profes- sional capacity, acquires a knowledge of his con- dition, the information as acquired is privileged, even as to the sobriety of his patient.** A phy- sician may not testify that his patient had a venereal disease while he was treating him.*^ Nor, in a suit by a husband for an aJ^solute di- vorce on the ground of adultery, may a physician 29. Nelson v. Oneida, 1S6 N. Y. 219, SO N. E. R. 802, 66 Am. St. Rep. SS6. 30. Nesbit v. People, 19 Colo. 441. 31. Patten v. United Life & Ace. Ins. Ass'n, 4S N. Y. State Rep. 661, 133 N. Y. 450. 32. Re Lxjwenstein's Estate, 51 N. Y. Rep. 423. 33. People v. Nino, 149 N. Y. 317. 34. Kling V. Kanisas City, 27 Mo. App. 231 ; Cooley v. Folz, 85 Mich. 47. ■ . 35. Sloan v. N. Y. Cent. Ry. Co., 45 N. Y. 125. PRIVILEGED COMMUNICATIONS 605 testify to donversations with the wife, while he was treating her, showing her guilty of the charge of adultery.*" A physician may not tes- tify that when he ceased treating a patient the latter was free from disease f but he may testify that the patient was cured of the ailment for which he was- treated.** Where a patient has more than one physician treat him, and he calls one of them to fhe stand in his own behalf, the adverse party is nOt there- by entitled to call another of the attending phy- sicians.*^ And where two physicians are in part- nership and one of them is employed to treat a patient, conversations between the patient and his physician at the office, which' are overheard by the other physician, are privileged.*" Where a physician attends a patient in the double capacity of friend and physician, and he is unable to separate information acquired by him in the one capacity from that acquired in the other capacity, the information acquired in both capacities is privileged.*^ But where a physician visits a person merely in the capacity of a friend the communications between them are not privi- leged. 36. Hun V. Hun, 1 N. Y. S. C. (T. & C.) 499. Z7. People V. Schnyler, 106 N. Y. 298. 38. Edington v. Etna Life Co. 77 N. Y. 564. 29. Mellon v. Mo. Pac. Ry. Co., 105 Mo. 455. ' 40. Dittrick v. Detroit, 98 Mich. 245; yEtna Life 'Ins. Co. v.- Dtmiiig, 123 Ind: 384. 41. Van Allen v. Gordon, 83 Hun (N. Y.) 379. 6o6 THE LAW OF EVIDENCE , Where a physician makes an examination on behalf of the adverse party,*^ or by direction of the court/^ the information so obtained is not privileged. Where a person considers himself still a pat- ient, but the physician considers the patient dis- charged, communications between them are privileged.** It has been held that a statement "made to a physician relative to the circumstances of an accident are privileged;*^ but there is no privi- lege as to collateral matters.*® The contrary, however, has been held.*'' Where a patient sues his physician for mal- practice the latter may testify as to relevant facts.** A physician may testify to the' mere fact that he treated a patient, and as to the number of 42. People v. Glover, 71 Mich. 307, 38 N. W. R. 874; State V. Heigiht, 117 la. 650, 91 N. W. R. 93S, 94 Am. St. Rep. 323; People v. Sliney, 137 N. Y. 570, 33 N. E. R. 150; Nesbit V. People, 19 Cqlo. 441, 36 Pac. R. 221. 43. People v. Sliney, supra; People v. Kemmler, 119 N. Y. 580, 24 N. E. R. 44. Patterson & Son v. Cole, 67 Kan. 441, 73 Pac. R. 54. 45. r^nnsylvania Co. v. Marion, 123 Ind. 415. 46. Hioyt V. Hoyt, 112 N. Y. 493, 20 N. E. R. 402. 47. Birmingham Ry. Co. v. Hale, 90 Ala. 8, 24 Am. St. Rep. 748. 48. Cramer v. Hurt, 154 "Mo. 112, 55 S. W. R. 258, 77 Am. St. Rep. 752 ; Lane v. Borcourt, 128 Ind. 420, 27 N. E. R. 1111, 25 Am. St. Rep. 442. PRIVILEGED COMMUNICATIONS 607 visits made.*® A hospital physician may testify to information acquired while acting in that ca- pacity. And a physician may testify to informa- tion acquired from a person from mere personal acquaintance.^" Where two or more physicians attend the same patient, communications between them concerning his condition or treatment are privi- leged.''^ A physician may not disclose the nature of his patient's ailments;"^ nor may he disclose information acquired by him as to physical de- fects or degrading marks on his patient ;^^ nor information as to the ingredients of the prescrip- tions given his patient.** But a physician may testify as to an autopsy of the body of a person whom he had treated. "A dead man is not a 'patient', capable of sustaining the relation of confidence towards his physician which is the foundation of the rule given in the statute, but is a mere piece of senseless clay which has 49. Price v. Ins. Co., 90 Mirni. 264, 95 N. W. R. 1118; Sover- eign Camp V. Gratidon, 64 Neb. 39, 89 N. W. R. 448; Patten v. United Life & Ace. Assn., 133 N. Y. 450; Ditt- ri<;h V. Detroit, 98 Mich. 245. 50. Fisher v. Fisher, 129 N. Y. 654. 51. State V. Smith, 99 la. 26, 61 Am. St. Rep. 219. 52. Nelson v. Nederland Life Ins.' Co., 110 la. 600; Lammi- man v. Detroit Citizens' St. Ry. Co., 112 Mich. 602; Sloan V. N. Y. Cent. Ry. Co., 45 N. Y. 125. 53. Kling V. Kansas City, 27 Mo. App. 231. 54. Nelson v. Nederland Life Ins. Co., supra. 6o8 THE LAW O'f EVIDENCE passed beyond the reach of human prescription, medical or otherwise. "^^ A physician may give an expert opinion based upon a hypothetical question, provided it does not disclose information acquired by him while treating a patient professionally.'^ Where a party desires to prevent testimony of privileged matters from reaching the jury he must interpose an objection when it is offered.®'^ The objection must be made, however, by the party for whose benefit the privilege exists. ^^ He may, of course, waive his privilege, either orally or in writing.'® A presumption, exists that all information given the physician by his patient is to aid him in prescribing proper treatment.®" The objector, however, has the burden of show- ing that the testimony offered is privileged.®^ Where a physician sues his ^ patient for the value of professional services rendered the rule of privilege applies.®^ Ordinarily, the rule of privilege is applicable 55. Harrison V. Sutter Ry. Co., 116 Cal. 156, 47 Pac. R. 1019. See also, Ossenkop v. State, 86 N«b. 539, 126 N. W. R. 72. 36. Crago v. Cedar Rapids, 123 la. 48, 98 N. W. R. 354; Peo- ple V. Schuyler, 106 N. Y. 298; People v. Murray, 101 N. Y. 126. 37. Hoyt V. Hoyt, 112 N. Y. 493. 58. People v. Murphy, 101 N. Y. 126. 39. Matter of Coleman, 111 N. Y. 220. 60. Feeney v. Lx>ng Id. Ry. Co., 116 N. Y. 373. 61. People V. Koemer, 154 N. Y. 355; Bowles v. Kansas City, 51 Mo. App. 416. 62. Van Allen v. Gordon, 83 Hun (N. Y.) 379.- ' PRIVILEGED COMMUNICATIONS 609 to criminal cases as well as civil. ®^ But where the testimony is offered for the purpose of show- ing either the innocence or guilt of the accused, a higher puBlic policy demands that the testi- mony be admitted.®* § 21. Privilege for patient's benefit. Waiver. — The privilege conferred by the statutes is for the patient's benefit. It is the policy of the law to protect patients in the free disclosure of their imaladies to their physicians. The latter may not make disclosures unless authorized to' do so by their patients. The patient, however, may waive his privilege. This he may do at any tirae.®^ It has been held that the patient's attorney may waive the privilege.®® And after the patient's death it may be waived by his personal repre- sentative.®' In a contest over the probate of the deceased patient's will, on the ground of testa- mentary incapacity, some courts hold that the ■physician may testify,®^ while other courts hold 63, People v. Murphy, supra. 64. People v. Harris, 136 N. Y. 423; Hank v. State, 143 Ind. 238; P€ople v. Lane, 101 Cal. 513. 5'S. Morris v. N. Y., etc., Ry. Co., 148 N. Y. 88, SI Am. St. Rep. 675; In re Bruendl, 102 Wis. 45, 78 N. W. R. 16; Cramer v. Hurt,, 154 Mo. 112, 77 Am. St. Rep. 752. 66. Albert! v. N. Y., etc., Ry. Co., 118 N. Y. 77; Thompson v. Ish, 99 Mo. 160-. 67. Holcomb v. Harris, 166 N. Y. 257; Morris v. Morris, 119 Ind. 341. ■ 68. Winters v. Winters, 102 la. S3, 71 N. W. R. 184, 63 Am. St. Rep. 428 ; In re Shapter, 35 Colo. 578, 85 Pac. R. 688, 117 Am. St. Rep. 216, 6 L. R. A. N. S. 575 ; In re Conner, 124 N. Y. 663, 27 N. E. R. 413. 6lO THE LAW OF EVIDENCE the contrary."® It has been held that the con- testant may not waive the privilege ;'''' but that the proponent may."^ In an action on an insur- ance policy on the patient's life it has been held that the beneficiary may waive the privilege/^ And in the case of infant patients it has been held that the privilege may be waived by their par- ents/^ The mere fact that the patient takes the stand, or calls the physician as a witness, does not constitute a waiver of the privileged* Where a physician is a subscribing witness to his pat- ient's will he is competent to testify as to the issue of testamentary capacity.^^ In New York the rule of privilege is also ap- plicable to communications between a patient and his professional or registered nurse.''* It is 69. Matter of Sudan, 1S6 Cal. 230, 104 Pac. R. 442; Towles V. MoCurdy, 163 Ind. 12, 71 N. E. R. 129; In re Van Alstine, 26 Utah 193, 72 Pac. R. 942. 70. In re Mansbach, ISO Mich. 348, 114 N. W. R. 65; Heas- ton V. Krkg, 167 Ind. 101, 77 N. E. R. 805. 71. Eraser v. Jennison, 42 Mich. 206. 72. Perni. Mut. Life Ins. Co. v. Wiler, 100 Ind. 92, 50 Am. Rep. 769. 73. State V. Depositer, 21 Nev. 107, 25 Pac. R. 1000 (waiver may be implied). 74. Butler v. Manhattan Ry. Co., 143 N. Y. 630; McConnell V. Osage, 80 la. 293. 75. In re -Mullin, 110 Cal. 252, 42 Pac. R. 645. 76. Homnyack v. Prudential Ins. Co., 195 N. Y.'456, 87 N. E. R. 769. PRIVILEGED COMMUNICATIONS 6l I not applicable, however, to veterinary sur- geons, '^'^ dentists,'''* or drug clerks. '''' § 22. Communications to spiritual advisers. — At common law, communications or confessions to a spiritual adviser are not privileged.*" But by statute, in most of the states, such communi- cations arc privileged.*'- The statutes provide substantially that no minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him in his professional character in the course of dis- cipline enjoined by the rules or practice of such denomination.*^ The rule is applicable to the communications of both parties.** It is usually restricted, however, to communications that come within the course of discipline enjoined by the church.*^ n. Hendershot v. Tel. Co., 106 la. -529, 76 N. W. R. 828, 68 ' Atn. St. Rep. 313. 78. People v. De France, 104 Mich. 563, 62 N. W. R. 709. 79. Brotwn v. Ry. Co., 66 Mo. 588, 597. 80. Normanshaw v. Normanshaw, 69 L. T. Rep. N. S. 468; Wheeler v. Le Marchant, 17 Ch. Div. 675, 45 J. P. 728, 50 L. J. Oh. 793, 44 L. T. Rep. N. S. 632. 81. State V. Morgan, 196 Mo, 177, 95 S. W. R. 402, 7 Ann. Cas. 107 and note; Partridge. v. Partridge, 220 Mo. 321, 119 S. W. R. 415, 132 Am. St. Rep. 584; Blossi v. Chi- cago, etc., Ry. Co., 144 la. 697, 123 N. W. R. 360, 26 L. R. A. N. S. 255 ; Knight v. Lee, 80 Ind. 201 ; Hills v. State, 61 Neb. 589, 85 N. W. R. 836, 57 L. R. A. 155. 82. People v. Gates, 13 Wend. 311. '83. Gill V. Bouchard, 5 Quebec Q. R. D. 138. 84. State v. Morgan, supra; People v. Gate?, supra; Hills v. State, supra; Gillooley v. State, 58 Ind. 182; Milburn v. 6l2 THE LAW OF EVIDENCE The privilege is for the benefit of the penitent. Hence the spiritual adviser may not w^aive it. If the penitent does not waive it the privilege re- mains forever.®^ § 23. Affairs of state; Pdlitial commtinica- tions. — Based - upon public policy, communica- tions involving affairs of state have always been privileged. Mr. Stevens says, "No one can be compelled to give evidence relating to any afifairs of state, or as to official communications between public officers upon public afifairs, except with the permission of the officer at the hea^d of the department concerned."^® While a disclosure of afifairs of state might endanger the nation,?'^ and also cause injury to the seryants of the state as individuals,^® yet, inasmuch as the rule of privilege can be utilized for partisan and selfish ends it is fraught with great danger, and for this reason has been most severely criticised. § 24. Same. Rule criticised. — Mr. Botts says, "I can never express, in terms sufficiently strong, the detestation and abhorrence which every American should feel towards a system of state secrecy. It never can conduce to public utility, though it may furnish pretexts to men in power Haworbh, 47 Col. 593, 108 Pac. R. ISS, 19 Atm. Cas. 643 and note. 85. Westover v. ^Etna Life Ins. Co., 99 N. Y. 56. 86. Steph. on Evid., art. 112. 87. Thompson v. German Valley Ry. Co., 22 N. J. E. 111. 88. Hennessy v. Wright, L. R. 21 Q. B. D. 509, 512. PRIVILEGED COMMUNICATIONS 613 to shelter themselves and their friends and agents from the just animadversion of the law, to direct their malignant plots to the destruction, of other men while they are themselves secure, from punishment."^® Dean Wigmore says, "The menace whichthis supposed privilege implies to individual liberty and private right will justify us in repudiating it before it is too solidly entrench- ed in precedent."®" And Edward Livingston, the great American jurist, says, "No nation ever yet found any inconvenience from too close an in- spection into the conduct of^its ofiScers ; but many have been brought to ruin and reduced to slav- ery, by suffering gradual impositions and abuses ^which were imperceptible only because the means of publicity had not been secured.®^ , § 25. Application of rule. — But in the face of severe criticism the rule still obtains. State sec- rets and information acquired by public officials are privileged whenever their disclosure would be contrary to public poHcy.®^ The rule is ap- plicable to communications pertaining to afifairs of state and those pertaining to the administra- 89. Aa'roh Burr's Trial, Robertson's Rep. Vol. II., p. S17. See also, Jusfic Mondelet's severe criticism of the tul« in Gugy V. Maguire, 13 Lower Canada 33, 38. 90. Wigmore on Evid., Vol. IV., p. 3342. 91. Works of Edward Livingston', Vol. I., p. IS. 92. Stegal v. Thurman, 175 Fed. R. 813 ; In re Lamberton, 124 Fed. R. 446 ; Worthington v. Scribner, 109 Mass.. 487, -12 Am. Rep. 736; Roske v. Comingore, 177 U. S. 459; In re Weeks, 82 Fed. R. 729; Hartranft's Appeal, 85 Pa. St. 433, 447. 6l4 THE LAW OF EVIDENCE tion of penal justice. Not only are the heads of departments of both the national and the state governments privileged, but also subordinate officers. The disclosure of communications be- tween heads of the departments of state and' their subordinate officers is not compellable. Thus, communications between a United States district attorney and the attorney-general;®? or between the governor of a province and his at- torney-general ;** or between an agent of the government and the secretary of state, ®^ are privileged. Communications between the presi- dent of the United States and heads of govern- mental departments are privileged. Similarly, those between the governor of a state_ and heads of governmental departments are privileged. It was held that a contract between the president of the United States and an individual, made dur- ing the civil war, whereby tlie latter agreed to render secret, services in furnishing the president with information as to the movements and re- sources of the enemy was privileged.^'' The rule of privilege applies to proceedings of parliament,*'^ and to proceedings of the United States senate in executive session.®* The presi- 93. United States v. Six Lots, 1 Woods (U. S.) 234. 94. Wyatt v. Gore, Holt 299. 95. Anderson v. Hamilton, 2 Brod. & B. 156 n; Marbury v. Madison, 1 Crauch (U. S.) 144. 96. Tptt€n V. United States, 92 U. S. lOS. 9T. Beatson v. Skenie, S Hurl. & N. 838. 98. Law v: Scott, S Har. & J. (Md.) 438. ■ PRIVILEGED COMMUNICATIONS 615 dent of the United States and the governors of the several states may refuse to produce docu- ments when in their judgment it would be inex- pedient to do so as a matter of public policy. Moreover, secondary evidence of their contents is not admissible. ^^ As stated at the beginning of this section, the basis of the privilege is public policy. Where a disclosure would be against public policy the privilege obtains; but where a disclosure would not be against public policy it should not obtain. § 26. Who determines the question. — The question arises, who should determine the mat- ter, the officer who has possession of the com- munication, or the court? Upon this question there are two views. One is that the officer hav- ing possession of the communication should de- cide it. The other is that the court should do so. The reason assigned for the former view is that since a judicial inquiry would necessarily have to be public this would of necessity give the com- mimications the publicity which public policy re- quires should be avoided.^"" The two reasons that have been assigned in favor of the latter view are,- (i) it is an inherent function of the coitrt to decide upon the admissibility of test- mony; and (2) a higher public policy obtains in favor of this view. Dean Wigmore says, "The truth cannot be escaped that a court which ab- 99. Washington v. Scribner, 109 Mass. 487. 100. Beatson v. Skene, supra. 6l6 THE LAW OF EVIDENCE dicates its inherent function of determining the facts upon which the admissibility of evidence depends will furnish to designing officials too ample opportunities- for abusing the privilege. The lawful limits of the privilege are extensible beyond any control, if its applicability is left to the determination of the very official whose in- terest it is to shield his wrongdoing under the privilege: Both principle and policy demand that the determination of the privilege shall, be for the judge. "^ § 27. Matters pertaining to the admiriistration of penal justice.— In prosecutions for crime, the names of informers and the channels of com- munication are privileged. The basis of this rule is public policy. The rule is for the benefit of the government — not the informer. Courts will not compel or permit the disclosure of the names of informers, or the channels of communications, without the consent of the government.^ The privilege also extends to the governor, secretary of state, adjutant general and a general and major of the national guard.^ The rule has fre- quently been applied in revenue cases.* It also 1. Wigraore -on Evid., Vol. IV., p. 3345. 2. Worthington v. Scribner, 109 Mass. 487, 489,' 12 Am. Rep. ' 736; Gabriel v. McMtilleti, 127 la. 426, 103 N. W. R. 355; State V. Soper, 16 Me. 293, 33 Am. Dec. 665; Hardy's Trial, 24 How. St. Tr.' 8. " 3. Appeal of Hartrauf, 85 Pa. St.^ 433. 4. Worthington v. Scribner, supra. PRIVILEGED COMMUNICATIONS 6lJ Has been applied in cases of larceny,* libel, ^ trea- son,'' counterfeijting,^ etc. § 28. Scope of the privilege. — As regards the matters which are privileged the rule covers a wide range. Any information possessed by a state department comes within the rule.* In the case of subordinate officers who refuse to tes1;ify the court decides whether their claim of privilege is justified or not.^" But in the case of high pub- lic officials the court will not compel them to tes- tify.!^ § 29. Social commiuiications. — Based upon public policy, communications between husband and vfiie, in the confidence of the rilarital rela- tion, are privileged.-'^ At the common law hus- band and wife were incompetent to testify either for or again'st the other.^^ Enabling statutes, however, have modified this rule very much, so 5. State V. Soper, supra. 6. Gray v. Pentland, Serg. & R. (Pa.) 23; Earl v. Vass, 1 Shaw 229. ' 7. R. V. Watson, 32 How. St. Tr. 1, 102, 105, 2 Stark, 116, 136; R; v. Hardy, 2,4 Hqw. St. Tr. 199, 753, 816, 823. 8. United 'States v. Moses, 4 Wash. (U. S.) 726. • 9. State V. Soper, supra; Attorney General v. Briant, 15 Mees. & W. 169, 183. 10. Beatsbn V. Skene, 5 Hurl, & N. 838, 854. 11. Thompson v. Ry. Co., 22 N. J. Eq. 111. 12. Com. V. Cronin, 185 Mass. 96, 69 N. E. R. 1065; Schref- fler V. Chase, 245 111. 395, 92 N. E. R. 272, 137 Am. St. :^€p. 330; Sexton v. Sexton, 129 la. 487;,Leticht v. Leucht, 129 Ky. 700, 112 S. W. R.' 845, 130 Am. St. Rep. 486; \yarner v. Press Pub. Co., 132 N. Y. 181, 30 N. E. R. 393. vl3. Soilthwick V. Sotithwick, 49 N. Y. 510. 6l8 THE LAW OF EVIDENCE that the disquahfication has practically disap- peared.^* These statutes, however, have not changed the rule as regards confidential com- munications.^^ There is much confusion in the decisions, however, owing to the fact that some courts fail to discriminate between the anti-mar- ital privilege and the marital disqualification to testify.^® The former may be waived, but not the latter. § 30. Scope of the privilege, — The privilege is confined to conRdential- communications'.^^ As to information not acquired through the confi- dence of the marital relation the privilege does not apply.^^ A few courts, however, apply the rule to all communications between the sSpouses.^^ The former rule obtained at common law,^" and is in harmony with the great weight 14. People V. Langtree, 64 Cal. 256, 30 Pac. R. 813 ; Waster- man V. Westerman, 25 Ohio St. R. 500, 507. 15. Hyde V. Gannett, 175 Mass. 177, 55 N. E. R. 991 ; People V. Wood, 126 N. Y. 249, 27 N. E. R. 362; Bassett v. United States, 137 U. S. 496. 16. Wigmore on ]?vid., Vol. IV., § 2334. 17. Ward V. Oliver, 129 Mich. 300,' 88 N. W. R. 631 ; Sexton V. Sexton, supra. 18. Brown v. Johnson, 101 Wis. 661, 77 N. W. R. 900; Clover V. M. W. A., 142 111. App. 276 ; Shanklin v. McCracken, 140 Mo. 348, 41 S. W. R. 898; Safe v. State, 127 Ind. 15, 26 N. E. R. 667; Seitz v. Seitz, 170 Pa. St. 71; Parkhurst v. Berdell, 110 N. Y. 386; Hagerman v. Wigent, 108 Mich. 192. 19. Com. v. Hayes, 145 Mass. 289 ; Ne-wstrom v. St. Paul, etc., Ry. Co., 61 Minn. 78. 20. Aves'on v. Kinnaird, 6 East 194. PRIVILEGED COMMUNICATIONS , 619 of authority. As said by Dean Wigmore, "The e-ssence of the privilege is to protect confidences only."2i ■ The rule applies to confessions of infidelity ;^^ accusations of infidelity and want of afifection ;^® threats against third persons f* communications as to the spouse's income or property ;^^ docu- ments intrusted to the custody of the other spouse,^® and letters written by one spouse to the other.^^ It has been held, however, that a letter by ,the wife to her husband giving reasons for leaving him is not privileged.^* The same has been held as to a boastful and defiant decla- ration by the husband of his misconduct, and of his intention to continue it, accompanied by in- solent and brutal taunts. ^^ In an action for sep- aration either spouse may testify to communica- 21. Wigmore on Evid., Vol. IV., § 2336. , 22. Sanborn v. Gale, 162 Mass. 412, 38 N. E. R. 710, 26 L. R. A. 864; Henderson v. Chaires, 25 Fla. 26, 6 So. R. 164; State v., Brittain, 117 N. C. 783, 23 S. E. R. 433 (incest). 23. Suitclifife v. Iowa State Trav. Men's Assoc, 119 la. 220, 93 N. W. R. 90, 97 Am. St. Rep. 298. 24. Gant v. State, SS Tex. Cr. R. 284, 116 S. W. R. 801. 25. In re Jeflferson, 96 Fed. R. 826. 26. Took V. Toole, 107 Ga. 472. , 27. State V. Ulrioh, 110 Mo. 350; Derham v'. Derham, 125 Mich. 109. ■ 28. Fowkr v. Fowler, 33 N. Y. State * Rep. 746; Fuller v. Fulkr, 177 Mass. 184, 58 N. E. R. 588, 83 Am. St. Rep. 273. 29. Seitz V. Seitz, supra. 620 THE LAW OF EVIDENCE tions between them.^" But neither may testify to facts which«tend to show adultery of the other. .Either spouse may testify as to the mental or physical condition of the other spouse.^^ The wife may testify to her husband's intoxicated condition. ^^ And one spouse may testify to a communication from the other spouse which the latter heard from a third party,^^ Communica- tions between a husband and his wife, in the presence of a third party, are not privileged.^* Where the conversation of one spouse is a mere device to entrap the other spouse into a confes- sion of infidelity the conversation is not privi- leged.^^ In a divorce proceeding, where each spouse charges the other with adultery, each may testify as regards the charge made by the other spouse, but not as regards the charge made by himself or herself.^® In an action for criminal conversation the plaintiff is competent to testify to the fact in issue f and in such case 30. De Meli v. De Meli, 120 N. Y. 485; Morrill v. Palmer, 68 Vt. 1. ' 31. Stack V. PourtsmGrath, 52 N. H. 221; United States v. Guteau, 1 Mackey (D. C.) 498, 47 Am. Rep. 247. Contra, Brewer v. Ferguson, 11 Humph. (Tenn.) 565. 32. Stanley v. Stanley, 112 Ind. 143, 13 N. E. R. 261; In re Van Alstine, 26 Utah 193, 72 Pac. R. 942. 33. Giddings v. Iowa Sav. Bank, 104 la. 676, 74 N. W. R. 21, 34. Lyon v. Prouty, 154 Mass. 488. 35. Fowler V. Fowler, 11 N. Y. Supp.l. 419, 19 N. Y. Civ. Proc. 282. 36. McCarthy v. McCarthy, 143 N. Y. 235. 37. Smith V. O'Brien, 24 N. Y. State Rep. 708. ■ PRIVILEGED COMMUNICATIONS 62 1 a divorced spouse may testify."* Where the hus- band is charged with procuring a miscarriage"® on his v^rife, or with any other crime*" against her, the latter may testify a.gainst him. Where the wife sues her husband for separation upon .the ground of cruel treatment or desertion either spouse may -testify against the other spouse.*^ Ordinarily, business communications between husband and wife are not confidential.** It has been held, however, that, in an action by a widow against her deceased husband's heirs and de- visees, written communications between the spouses during the husband's lifetime, pertain- ing to a business in which they were both inter- ested, to the effect that the business was unpro-' fitable, were privileged.*" If a third party overhears a communication between the spouses it is no longer privileged.** 38. Dickermain v. Graves, 6 Oush. (Mass.) 309; Wottrich v. • Freeman, 71 N. Y. 601. 39. State v. Dyer, 59 Me. 303. 40. Jordan v. State, 142 Ind. 442; Tucker v. State, 7,1 Ala. 342; Whipp v. State, 34 Ohio St. 87; United States v. Smallwood, S Cranch (U. S.) 35. 41. Casey v. Casey, 4 Daly (N. Y.) 270. 42. Schafifner v. Reuter, 37 ^avb. (N. Y.) 44; Ward v. Olliver, 129 Mich. 300, 88 N. W. R. 631; Parkhurst v. Berdell, 110 N. Y. 386, 18 N. E. R. 123, 6 Am. St. Rep. 384; Wood V. Chetwood, 27 N. J. E. 311; Sexton v. Sexton, supra; Beil^an v, Hopkins, 109 Ind. 177, 9 N. E. R. 720. 43. Mitchell v. Mitchell, 80 Tex. 101. 44. Com. V. Griffin, lib Maiss. 181; People v. Hayes, l4o N. Y. 484, 5 N. Y. State, Rep. 463, 37 Am. St." Rep. 572; State 622 TEtE LAW OF EVIDENCE But a stranger may not object to the disclosure of a privileged communicatian.*^ Some courts hold that, vs^here a third party overhears a con- versation- betv\reen the spouses, or letters by one spouse to the, other inadvertently get into the hands of a third party, the communications are- still privileged.*® The weight of authority, how- ever, is to the contrary. According to the latter view even an eavesdropper may testify to the communications. *'' But where the third party is incapable of understanding the conversation,*® or where it takes place in the presence of the youthful members of the family,*^ the conversa- tion is still privileged. Where one spouse acts as the agent of the other spouse the communications between them are usually not privileged.^" Some courts, how- ever, hold the contrary." V. Hoyt, 47 Conn. 518; State v. Center, 35 Vt. 386; State V. Ulrich, 110 Mo. 350. 45. McNutty's Appeal, 135 Pa. St. 210. ' 46. Mercer v. State, 40 Fla. 216, 74 Am. St. Rep. 135; Scott V. Com., 94 Ky. 511, 42 Am. St. Rep. 371. 47. Com. V. Griffin, supra; People v. Hayes, 140 N. Y. 484, 37 Am. St. Rep. 572. 48. Schierstein v. Schierstein, 68 Mo. App. 205. 49. ,Lyon v. Pnouty, ,154 Mass. 488 (in presence of daughter fourteen years old) ; Hopkins v. Grimshaw, 165 U. S. 342. 50. State v. Burlingame, 146 Mo.' 207; Sdimied v. Frank, 86 Ind. 250; Lurty v. Lurty, 107 Va. 466, 59 S. E. R. 405; Nichols V. Rosenfeld, 181 Mass. 525, 63 N. E. R. 1063 (reversing Com. v. Hayes, 145 Mas& 289, 14 N. E. R. 151); Stickney v. Stickney, 131 U. S. 227, 9 S. Ct. 677, . , L. ed. 136. PRIVILEGED COMMUNICATIONS 623 § 31. Right to waive the privilege. — In some jurisdictions the party who makes the communi- cations may waive the privilege. ^^ In other jurisdictions both spouses must concur.^* The mere fact that one spouse takes the stand and testifies generally is not a waiver of the privi- lege.®* Nor does the death of one spouse, or a divorce, constitute a waiver.®* But if one spouse testifies to the cofhmunication,®^ or calls the other spouse to the stand to do so, the privilege Is waived.®''' § 32. Judicial communications. — The delibera- tions of judges, and other matters which occur in the consulting room, are privileged.®^ More- over, as said by Mr. Stephen, "It is doubtful whether a judge is compellable to testify as to anything which came to his knowledge in court as such judge."®® 51. Marshall V. Marshall, 71 Kan. 313, 80 Pac. R. 629; Kelley '■ y. Andrews, 102 la., 119, 71 N. W. R-. 251. 52. -Hutchison v. State, 67 Ind. 449; Stickney v. Sticktiey, 131 U. S. 227. 53. Maynard v. Vimtcm, 59 Mich. 139, 60 Am. Rep. 276; Peo- ple V. Wood, 126 N. Y. 249. 54. People V. MfiUings, 83 Cal. 138, 17 Am. St. Rep. 223. 55. State v. Kodat, 158 Mo. 125; Geer v. Goudy, 174 111. 514; Brook V. Brock, 116 Pa. St. 109; Hitchcock v. Moore, 70 Mich. 112; Hopkins v. Grimshaw, 165 U. S. 342. 56. State v. "turner, 36 S. C. 534, 15 S. E. R. 602. 57. Coluxnbia, etc., Ry. Go. v. Hawthorne, 3 Wash. Ter. 353. 58. Noland v. People, 33 Colo. 322, 80 Pac. R. 887. See also, Whart. Evid. (3d ed.), §600. - 59. Steph. Evid., ant. 111. See also, R. v. Gazard, 8 Car. & P: 595. 624 THE LAW OF EVIDENCE For discussions pertaining to the deliberations of grand and petit jurors see §§49 and 50 of Chap- ter I. on Competency of Witnesses. ' CHAPTER III. Examination of Witnesses. § I. In general. — Each party to a suit has the right to call witnesses to the stand in his behalf. The conduct of the examination, however, is under the direction and control of the court and is susceptible of only a few positive rules. ^ Thus, the court may confine the examination of a wit- ness to one of two or more of the attorneys on onc/side of a case;^ or allow more than one of them to examine him.^ It may prevent useless delays in the examination,* and the eliciting of incompetent testimony.^ The object of the ex- amination is to elicit the truth from the witness; but, as said by Dr. Greenleaf, "The character, intelligence, moral courage, bias, memory and 1. Mathi's V. State, 45 Fla. 46, 34 So. R. 287; Burdside v. Everett, 186 Mass. 4, 71 N. E. R. 82; Beyer v. Hermann, 173 Mo. 295, 73 S. W. R. 164. 2. State V. Ntigent, 116 La. 99, 40 So. R. 581. See also, Johnson v. Shaw, 204 Mass. 165, 90 N. E. R. 518. ,3. Citizens'Banik v. Fromliolz, 64 Neb. 284, 89 N. W. R. 775. 4. State V. Bean, 74 Vt. Ill, 52 Atl. R. 269; State v. Caron, 118 La. 349, 42 So. R. 960. 5. Kenyon v. Woodruff, 33 Mich. 310. EXAMINATION OF WITNESSES 625 other circumstances of witnesses are so various as to require almost equal variety in the manner of interrogation and the degree of its intensity to attain that end."^ Ordinarily, witnesses are examined by coun- sel. A party to the suit, however, may act as his own counsel and examine witnesses. Moreover, in the absence of a rule of court to the contrary, he may do, so even where he has counsel employ- ed in the case.* § 2. Order of conducting the examination. — As a general rule, the examination of a witness comprises three stages — (i) the direct examina- tion; (2) the cross-examination, and (3) the re- examination. In some cases it comprises a fourth stage — the re-cross examination. These various stages are discussed in detail in later sections of this chapter. § 3. Testimony given viva voce. — As prev- iously'stated, the object of the examination is to elicit Ihe truth. And, in a large measure, the- truthfulness of a , witness' is judged by his de- meanor on the stand. One of the chief reasons for excluding hearsay testimony is the fact th^t the jury are not afforded an opportunity to ob- serve the demeanor of the witne,ss. Hence the importance of the rule that he must be person- 6. State V. Farley, 87 la. 22, 53 N. W. R. 1089. 7. Greenl. Evid., §431. 8. Talbot V. Talbot, 2 J. J. Marsh, (Ky.) 3. See also, In re , Singleton, 8 Dana (Ky.) 315. 626 THE LAW OF EVIDENCE ally present whenever possible and State orally the facts which he is called upon to give.® § 4. Testimony must be under oath or affirma- tion. — The examination of ^ a witness must be under oath or affirmation.^" This requirement is to insure the utterance of the truth by laying hold of the conscience of the witness and appeal- ing to his sense of accountability.^^ In other words, as stated by Somerville, J., "To purge the conscience, ^nd impress the witness with a due sense of religious obligation, so as to secure the purity and truth of his testimony under the influence of its sancity."^^ Testirtiony by the prosecuting attorney, -^^ or by a petit juror,^* must be given under oath or affirmation the same as that given by any other witness. It is not essential, however, that a wit- ness be sworn more than once during the trial. ^® § 5. Effect of testifying without being sworn. — Where a witness testifies without being sworn, and the nj^istake is discovered before the jury 9. Noonan v. Orton; 5 Wis. 60, 61 ; Maxwell's Executors v. Wilkinson, 113 U. S. 656, S Sup. Q. 691; Akock v. Loyal Exch. Assur. Co., 13 Adol. & El. (N. S.) 292. 10. Staite V. Smith, 78 N. C. 462; Walker v. Noll, 92 Ark. 148, 122 S. W. R. 488 ; State v. Tom, 8 Oreg. 177. 11. Clinton v. State, 33 Ohio St. 33. 12. BlackstoMe v. State, 71 Ala. 319. 13. State V. Lowry, 42 W. Va. 205, 24 S. E. R. 561. 14. Underhill v. Waite, 9 Daly (N. V.) 83 ; Anderson .v. Barnes, 1 N; J. L. 203. "* 15. Redd V. State, 65 Ark. 475, 47 S. W. R. 119; Bullock- v. Koon, 9 Cow. (N. Y.) 30. EXAMINATION OF WITNESSES 627 retires, it may be corrected either by recalliiig the witness and having him testify under oath, or by the court charging the jury to disregard his testimony.'-® Moreover, where the mistake is discovered before the jury retires, and no ob- jection is made to it, the omission is waived. -^^ As said by Shaw, C. J., "But a verdict having been taken, with knowledge of the omission of the witness to be sworn, through inadvertence of all the parties, the objection conies too late, and cannot' efifect the validity of the verdict."^® It has been held, however, that where a witness testifies without being sworn, and the mistake is not discovered until after the verdict, the omission is fatal.^° The fact that a witness is not sworn until after his examination begins does not affect the admissibility of the testimony he gives after taking the oath.^" § 6. Modes of binding the conscience. — The object sought in requiring a witness to swear or affirm is to bind' his conscience. To accomplish this no set form should be demanded. At com- mon law any mode, which he believes binding 16. State V. Williams, 49. W. Va. 220, 38 S. E. R. 495 ; South- ern Ry, Co. V. Ellis, 123 Ga. 614; SI S. E. R. 594. 17. Slaughter v. Whitlock, 12 Ind. 338. 18. Cady, v. Norton, 31 Mass. 236. 19. Haiwkes v. Baker, 6 Me. 72; Reg. v. James, 6 Cox C. C. 5. But see, Moore v. State, 9B Tenn. 209, 33 S. W. R. 1046; Goldsmith v. State, 32 Tex. Cr. R. 112, 22 S. W. R. 405. 20. Com. V. Keck, 148 Pa. St. 639, 24 Atl. R. 161. 628 THE LAW OF EVIDENCE on , his conscience, is sufficient.^^ "The pure principle of the common law is that oaths are to be administered to all. persons according to their own opinions, and as it most affects their con- sciences."^^ "It has been the wisdom -of all na- tions to administer such oaths as are agreeable to the notion of the person taking."^^ And as sa:id by^ Mansfield, L. C. J., "Upon the principles of the common law there is^ no particular form essential to an oath to be taken by a witness; but as the purpose of it is to bind his conscience, every man of every religion should be bound by that form which. he himself thinks will bind his own conscience most."^* Where it does not ap- pear that some other form of oath is more bind- ing on the conscience of the witness it is not re- versible error to administer the oath in the usual form.^® Where a contention is made that the usual oath is not binding on the conscience of the witness the question should be decided be- fore the oath is administered.^^ A witness who takes the usual oath is presumed to intend that his conscience is thereby bound. ^'^ Where the 21. McKinney v. People, 7 111. 540, 43 Am. Dec. 65; Gou- zalez V. State, 31 Tex. 495. See also, Bow v. People, 160 111. 438, 43 N. W. R. 593. 22. Gill V. Caldwell, 1 111. S3. 23. Omichund v. Barker, 1 Atk. 45 (per, Lord Chancellor llardwicke). 24.'Atcheson v. Everitt, Cowp. 389. 25. People v. Green, 99 Cal. 564, 34 Pac. R. 231. 26. Statt v; Davis, 186 Mo. 533, 85 S. W. R. 354. 27. PuUen v. Pullen, (N, J. Oh. 1886) 4 Atl. R. 82. EXAMINATION OF WITNESSES 629 \ defendant is indicted tinder several aliases, the clerk, in administering the oath to the witnesses, may, ; after giving the defendant's true name, designate him by his several aliases.^* § 7. Usual form of the path.^ — At the English common law^, the usiaal form of the oath, in a criminal case, is as follows : "The evidence you shall give between our sovereign: lord the kifig and the prisoner at the bar shall be the truth, the, whole truth, and nothing but the truth. So help you God." In a civil case it is as follo^ys : "The evidence that you shall give to the court and jury, touching the matters in questipn, shall be the truth, the' whole truth, and ;nothing but the, truth", i So help )^ou God." While the. clerk is repeatuig the oath, the witness holds in his hand a copy of the Bible ; and after the clerk has re- peated the oath the witness kisses the Bible. ^^ In ■ this country the mode of swearing wit- nesses is usually prescribed by statute.^" The General Statutes of Kansas, provide as follows: "All oaths shall be administered by laying the right hand upon the Holy Bible, or by the up- lifted right hand."^'- "Any, person haying con- scientious scruples against taking an oath may affirm with like efifect."^^ "All oaths shall cofti- 28. People v. Everhardt, 104 N. Y. 591, 11 N. E. R. 62, 6 N. Y. Cr. R. 231. 29. Chiitty's Criminal Law (4th Amer. ed.), Vol. I. p. 616. 30. Curtis V. Lehmann, US La. 40, 38 So. R. 887; People v. • ■ Swvst, 136 CaI.'.S20, 69 Pac. R. 223: 31. § 674S. 32. §6:^46. 630 THE LAW OF EVIDENCE mence and conclude as follows : "You do sol- emnly swear," etc. "So help you God." Afifirm- ation shall commence and conclude as follows : "You do solemnly, sincerely and truly declare and afifirm," etc.; "And this you do under the pains and penalties of perjury."^* It has been held that the omission of the invocation "So help you Gbd" is not fatal.^* ; § 8. Same. Mode of administering the oath. — In England and Canada the witness takes the oath by kissing the Bible. This custom, how- ever, has been severely criticised. It has been characterized as repulsive and unsanitary,*^ and also as a relic of idolatry.*" In this country the oath is usually administered to the witness while he is standing with uplifted right hand.*^ A witness who has conscientious scruples against- taking an oath i^' usually allowed to afifirm. It has been held, however, that a witness who has no conscientious scruples against taking an oath should not be allowed to affirm.*^ All the wit- nesses may be sworn in a body at the beginning ■of the trial. This is a matter, however, which rests in the discretion of the court.*® 33. §6747. 34. People v. Swist, supra. 35. "Wigmore on Evid., Vol. III. p. 2353, note. 36. 31 Cent. Law Journal 93. 37. Gill V. Caldwell, supra. 38. Williamson v. Carroll, 16 N. J. L. 217; King v. Pearson, ' 14 Fed. Cas. No. 7790, 3 Cranch C. C. 435. 39. State v. Rooke, 10 Idaho 388, 79 Pac. R. 82; Vinkery v. EXAMINATION OF WITNESSES 63 1 § 9. Interpreters. — Deaf and dumb witnesses. — Where an interpreter is needed he may, after taking the oath himself, administer it to the wit- ness.*" The mode of examining a deaf and dumb witness is largely in the discretion of the court. *^ His answers may be given , in writing, or by signs thru the medium of an interpreter.*^ The fact that he can read and write is no bar to com- municating his answers by signs thru an , in- terpreter.*^ And the fact that a witness testifies in a foreign tongue is not reversible error unless it- appears that his testimony is incorrectly in- terpreted.** As regards the accuracy of the in- terpreter, this is not a question of law for the court of review to decide.*^ Where a witness is unable to speak above a whisper the court may appoint a person to repeat his answers.*® The question of appointing an interpreter is usually in the discretion of the court.*'' But where the State, SO Fla. 144, 38 So. R. 907; Rippey v. State, 29 Tex. App. 37, 14 S. W. R. 448. 40. Com. V. Jongrass,|181 Pa. St. 172, 37 Atl. R. 207. 41. Skaggs V. State, 108 Ind. S3, 8 N. E. R. -69S (witness shocted at question was allowed to give her answer in private) ; G'regory v. Chicago, etc., Ry. Co., 147 Pa. 715, ■124 N. W. R. 797. 42: State v. Howard, 118 Mo. 127, 24 S. W. R. 41. 43. State v.DeWolf, 8 Conn. 93, 20 Am. Dec. 90; Dobbins V. Little Rock Ry., etc., Co., 79 Ark. 8S, 95 S. W. R. 794, 9 Ann. Cas. 84 and note. 44. Com. V. Greasoti, 204 Pa. St. 64, S3 Atl. R. 539. 45. Skaggs V. State, supra. 46. Conner v. State, 25 Ga. 515, 71 Am. Dec. 184. 47. People v. Morine, 138 Cal. 626, 72 Pac. R. 166. 632 THE LAW OF EVIDENCE court's refusal to do so deprives a part^ of a ma- terial witness it constitutes reversible error.*® In the absence of an interpreter a witness should be required to testify in the English language.** A person who cannot read or write English may be qualified to act as an interpreter. If he can speak English, and also the language of the wit- ness, he is qualifited.^" § 10. Atheists as witnesses. — At common law an atheist is an incompetent witness. By statute, however, he is generally made competent. Where an atheist takes the oath he is estopped from denying its validity, and may be convicted of perjury if he testifies falsely. But in jurisdic- tions Where an oath is essential other persons may object to his incompetency.^^ § II. Variant views as to the purpose of the oath. — The early view and the modern view as to the purpose of the oath are quite different. According to the early view its purpose was to exclude persons who lacked theological belief, •or who had conscientious scruples against taking an oath, from testifying. This misconceived, view resulted in much injustice. The true pur- 48. Chicago, etc., Ry. Co. v. Shenk, 131 111. 283, 23 N. E. R. 436. 49. Koehkr v. Koehler, 104 Wis. 260, 80 N. W. R. 449. 50. Central of Georgia Ry. Co. v. Joseph, 125 Ala, 313, 28 So. 35. 51. Attorney General v. Bradlaugh, 14 2 B. D. 667, 671, 680, 681. 52. Attorney General v. Bradlaugh, supra. EXAMINATION OF WITNESSES 633' pose of, the oath, as understood today, and very generally applied, is to increase testimonial effi- ciency of witnesses by quickening their con- sciences and thereby stimulating them to tell the truth. The injustice of the early rule has largely disappeared, both in England and in this coun- try. As said by Dean Wigmore, "Arguments are no longer needed to prove the impropriety of the old inexorable rule."^^ § 12. Testimonial capacity of children. — At the English common law, capacity to take an oath and capacity to testify were practically equivalent terms. According to the modern view, however, as stated in the section next pre- ceding, they are not equivalent terms. Where a person has sufficient intelligence and a moral sense to tell the truth he has capacity to testify. As regards infants there is no fixed age which constitutes the dividing line between competency and incompetency. It is a matter of intelligence rather than a matter of age.^* An infant who has reached the age of fourteen years is 'presumed to have sufficient intelligence to comprehend the nature of an oath, and the danger, and impiety of testifying falsely.^^ Where the infant is less than fourteen years of age he S-3. Wigmore on Evid., Vol. Ill, § 1827. 54. Featherstpne v. People, 194 111. 32S, 62 N. E. R. 684! 55. State V. King, 117 la. 484, 91 N. W. R. 768; Shannon v. Swanson, 208 III. 52, 69 N. E. R. 869; State v. Doyle, 107 Mo. 36; State v. Richie, 28 La. Ann. 327, 26 Am. Rep. 100. 634 THE LAW OF EVIDENCE is not presumed to be competent.^* The ques- tion is one which rests in the sound discretion of the court.^^ Children five years of age have been held competent.^* The court may examifie the child as to his competency to testify,^® or permit the attorney to do so.®" Refusal to do either has been held prejudicial error.®^ Where the child manifests an understanding of right and wrong, and of the penalty attached to false swearing, he is con- sidered competent.®^ A statement by him that • he will go to hell if he testifies falsely is usually treated as sufficient assurance of his capacity to 56. Cases in foot-note SS. See also, notes, 16 Am. St. Rep. 31 ; 19 L. R. A. 6OS-6IO. 57. Clark v. Finnegan, 127 la. 644 (child seven years of age held competent) ; Donnelley v. Terr., 5 Ariz. 291, 52 Pac. R. 368 (child nearly seven held incompetent) ; Com. v. Wilson, 186 Pa. St. 1, 40 Ad. R. 283 (child of thirteen held competent). 58. Wheeler v. United States, 159 U. S. 523 (child five years of age held competent) ; State v. Juneau, 88 Wis. 180, 59 N. W. R. 580, 43 Am. St. Rep. 877, 24 L. R. A 857 (girl five years of age held competenit; indecent assault on her- self) ; Washburn v. People, 10 Mich. 372 (child seven years of age held competenit). 59. State V. Juneau, supra; State v. Doyle, 107 Mo. 36; Mc- Guire v. People, 44 Mich. 286, 6 N. W. R. 662, 38 Am. Rep. 265. 60. Carter v. State, 63 Ala. 52, 35 Atn. Rep. 4 and note. 61. Young v. State, 122 Ga. 725, 50 S. E. R. 996. 62. Com. v. Lynes, 142 Mass. 577, 56 Am. Rep. 709; Lee v. Ry. Co., 67 Kan. 402, 73 Pac. R. 110; McGuire v. People, supra; Carter v. State, supra. EXAMINATION OF WITNESSES 635 testify.*^ In the discretion of the court a child may be instructed as to the nature of the oath during a recess of the court.** § 13. Same. The theological test. — At the English^ coinmon law, competency to take an oath was essential. "An infant, though under the age of seven years, may be sworn in a crim- inal prosecution, provided such infant appears on strict examination by the court to possess a sufficient knowledge of the nature and conse- quences of an oath . . . but if they are found incompentent to take an oath their testimony cannot be received."*^ In some jurisdictions, however, by statute, a child of tender years may testify without taking an oath. Such a statute obtains in Michigan.** This view is a sensible one. As said by Dean Wigmore, "A child's in- clinations to tell the truth or the opposite is apt to be more a matter of instinct and of previous training and surroundings than of a conscien- 63. Williams v. State, 109 Ala. 64, 19 So. R. 530; Draper v. Draper, 68 111. 17. 64. Com. V. Lyn«s, 142 Mass. 577, 8 N. E. R. 408; State v. Todd, 110 la. 631, 82 N. W. R. 322. 65. Rex V. Brasier, East PI. of the Crown, I, 443 ; Hodd v. Tacoma, 45 Wash. 436, 88 Pac. R. 842 ; Neustadt v. N. Y. City Ry. Co., 104 N. Y. Suppl 735. 66. People v. Walker, 113 Mich. 367, 71 N. W. R. 641; Peo- ple V. Beech, 129 Mich. 622, 89 N. W. R. 363 (child six years old was asked six times whether she would promise to tell the ' truth and she nodded each time and it was held sufficient). 636 THE LAW OF EVIDENCE tious reflectjon upon the prospects of a future state."" § 14. Capacity of an insane person to take an oath. — An insane person is not necessarily an incompetent witness. It has been held, however, that a monomaniac should not be allowed to testify.,®® By the great weight of authority, how- ever, a monomaniac who understands the nature and obHgations of an oath, and is capable of giv- ing correct answers to questions submitted to him concerning what he has seen and heard, is a competent witness. ®® § 15. Modification of common-law rule per- taining to theological belief. — The rigid and un- just requirement of the English common-law rule regarding theological belief has been modi- fied by constitutional or statutory -provisions. By these provisions awitness who- has conscientious scruples against taking an oath may affirm. §16. Compelling attendance of witnesses,-^ Courts have an inherent power to compel the attendance of witnesses before them.''" This in- herent power has been recognized and enforced from early times.^^ By statute it has been ex- tended to arbitrators, referees, etc., and also to 67. Wigmore on EvW,, Vol. Ill, § 1821. 68. Waring v. Waring, 12 Jur. 947. 69. Coleman v. Com., 25 Gratt..(Va.) 865, 18 Am. Rep. 711; Holcomb V. Holcomb, 28 Conn. 177; District of Columbia v. Arrpep, 107 U. S. 579. 70. Jackson v. Mobley, 157 Ala. 408, 47 So. R. 590. 71. Array v. Long, 9 East 484. EXAMINATTON OF WITNESSES 6},y municipal corporations. Congress/^ and also state legislatures,''^ have this power. The pro- cess by which witnesses are compelled to atteiid court as witnesses is the writ of subpoena.'^* In some jurisdictions statutes confer upon justices of the peace authority to compel witnesses to attend trials in a court of record of the county.''^ Subpoenas are valid within the territorial limits of the state. But by statute, distances are pre- scribed beyond which witnesses may not be compelled to travel. These statutes' apply both to justice courts and courts of record. And fees are not recoverable for travel beyond the pre- scribed distances.'''^ Some courts, however, have held the contrary.'^''' In the federal courts the dis- tance is limited to one hundred. miles.''® § 17. Same. Right of an accused person to compulsory process. — At the English common law compulsory attendance of witnesses was not demandable of right even in criminal cases. ''^ But by provisions in constitutions and statutes the rule is otherwise. Under these provisions 72. Kil'hourn v. Thompson, 103 U. S. 168. 73. Osborne, Petitioner, 141 Mass. 307, 4 N. E, R. 618; Rhinehart v. State, 121 Tenn. 420, 117 S. W. R. 508, 17 Ann. Cas. 254. 74. Kirkendall v. Luzerne Co., 11 Phila. (Pa.) 575. 75. McHoney v. Kerwin, 56 Mo. App. 459. 76. Kingfield v. PuUen, 54 Me. 398. 77. Dutcher v. Justice, 38 Ga. 214. 78. Rev. Stat. U. S., §876 (U. S. Compl. St. 1901, page 667). 79. Pittman v. State, 51 Fla. 94, 41 So. R. 385 ; United States V. Reid, 12 How. (U. S.) 361, 13 L. ed. 10^3. 638 THE LAW OF EVIDENCE persons accused of crime are entitled to com- pulsory process.*" The right obtains not only in capital cases, *^ but also in other cases of fel- ony.*^ In exercising the right application must be made in due time.®* The officer intrusted with the duty of serving the process must exer- cise at least ordinary diligence.** Where the witness desired is a convict in the state peniten- tiary His deposition will suffice.*^ The court may compel, however, his personal attendance.*® The same rule obtains where the witness is an inmate of the state hospital for the criminal insane.*'^ The court may also require the production of documents.** It is essential, however, that the documents be described with sufficient cer- tainty.*'' If they are privileged communications," or tend to subject the witness to a penalty or 80. Rush V. State, 167 Ala. 11, S3 So. R. 266; State v. Gideon, 119 Mo. 94, 24 S. W. R. 748, 41 Am. St. Rep. 634; Pitt- man V. State, supra; Smith v. State, 118 Ga. 61, 44 S. E. R. 817; State v. Richar-d, 127 La. 413, S3 So. R.'669. 81. Enstace v. Greenville County, 42 S. C. 190, 20 S. E. R. 88. 82. Whittle V. Saluda County, 59 S. C. SS4, 38 S. E. R. 168. ■But see. State v. Smith, 2 Bay (S. S.) 62. 83. Palmer V. State, 165 Ala. 129, SI So. R. 358. 84. Smith V. State, supra. 85. People v. Putman, 129 Cal. 258, 61 Pac. R. 961. 86. People V. Putnam, sutra; Plancock v". Parker, 100 Ky. 143, 37 S. W. R. 594, 18 Ky. L. Rep. 622. 87. In re Thaw, 166 Fed. R. 71, 91 C. C. A. 657. 88. United States Exp. Co. v. Henderson, 69 la. 40. 89. State v. Davis, 117 Mo. 614. EXAMINATION OF WITNESSES 639 criminal prosecution, the court must exclude them.*" § 18. Same. Real party in interest. — At the common law a real party in interest, was an in- comf)etent witness ; and, of course, the adverse party cotild not compel him to testify.^^ Thus, a stockholder in a bank, in an action by the bank, could not be compelled to testify on behalf of the defendant.®^ By statute, however, in some juris- dictions, a party to the suit, or a real party in in- terest, can be compelled to testify on behalf^of the adverse party.®* And a party may sub- poena a co-party whose interest is adverse.®* § 19. Same. Female witnesses. — In a few _states, including Alabama and Georgia, female witnesses are ordinarily allowed to give their testimony by deposition.®^ Whenever necessary, however, the court may require their personal attendance.®® , 90. Durkee v. Lelatid, 4 Vt. 612; United States v. Regburn, 6 Pet. (U. S.) 352. 91. Flint V. Allyn, 12 Vt. 615 ; Taylor v. Henderson, 17 Serg. & R. (Pa.) 154; State v. Charity. 13 N. C. 543. 92. Oldto^n Bank v. Houlton, 21 Me. 501. 93. Lennartz v. Popp, 118 111. App. 31; Tucker v. Willis, 34 Tex. 247; In re Abbott, 7 Okla. 78, 54 Pac. R. 319; Ex \ Parte Priest, 76 Mo. 229; Wiley v. McBride, 74 Ark. 34, 85 S. W. R. 84. 94. Ow'ings v. Jones, ISl Ind. 30, 51 N. E. R. 82; Dudley v. Steele, 71 Ala. 423. 95. Ex Parte Jewks, 101 Ala. 429, 13 So. R. 564; Augusta, etc. Ry. Co. V. Randall, 85 Ga. 297, 11 S. E. R. 706. 96. Cases cited in foot-note 16. 640 THE LAW OF EVIDENCE § 20. Witnesses privileged from arrest, etc.— During the time witnesses are in attendance at court they are privileged from arrest and also from service of process on behalf of third parties. This rule obtains not only where they are pres- ent in response to subpoenas, but also where their attendance is voluntary.^'' The privileges stated also extend to all other proceedings of a judicial nature."® In the case of witnesses who attend from other states this rule of privilege is applied with even greater force."" The protec- tion continues until the witnesses have had suf- fi<:ient time to return home. It is also applicable to the parties to the suit. Moreover, it has been held applicable to attorneys from another state. ^"^ Ordinarily, it is somewhat strictly con- strued.-^ It may be waived by delay,^ deviation,^ giving bail,* confessing judgment^ or pleading in bar.® Where a witness is arrested in violation of the 91. Tliompson's Case, 122 Mass. 428, 23 Am. Rep. 370; Dun- gan V. Miller, 37 N. J. L. 182. 98. First Nat. Bank v. Ames, 39 Minn. 179, 39 N. W. R. 308; •Mathews v. Tufts, 87 N. Y. 568. 99. In re Healey, S3 Vt. 694, 38 Am. Rep. 713; Thompson's Case, supra; Mathews v. Tufts, supra. 100. Central Trust Co. v. Mil. St. Ry. Co., 74 Fed. R. 442. 1. Chaffee v. Jones, 19 Picic. (Mass.) 260. I 2. Clark v. Grant, 2 Wend. (N. Y.) 257 (delay of two days). 3. Chaffee v. Jones, supra. 4. Steward v. Howard, 15 Barb. (N. Y.) 26. 5. (Jyer v. Irwin, 4 Dill. (Pa.) 107. 6. Randall v. Crandall, 6 Hill (N: Y.) 342. Contra, Wash- burn V. Phelps, 24 Vt. 506. EXAMINATION OF WITNESSES 64I privilege the perpetrator is liable for contempt of cou;-t. And the party arrested will be dis- charged upon showing the want of jurisdiction of the court J § 21. Witnesses con:ipelled to testify.^ — Ordi- narily, witnesses are bound to angwer questions submitted to them, and refusal to do so subjects them to punishment for contempt.^ Thi.s rule does not apply, however, where the court_ is without jurisdiction.^ It has been held, how- ever, that the jui-isdiction of the court is a mat- ter that may not be raised by a witness in this collateral way." Where the questions call for answers which tend to incriminate the witness, or which constitute privileged communications, he will not be required to answer them. Nor -will he be required to answer questions which are immaterial or irrelevant. But the mater- iality and relevancy of answers are matters for the court to decide. ^^ The power to punish for contempt is inherent and necessary and existed at common law.^^ 7. Mohtor V. Sinner, Id Wis. 308, 44 N. W. R. 1099, 20 Am. Rep. 35; Christian v. Williams, 111 Mo. -429, 20 S. W. R. 96. 8. Holman v. Austin, 34 JTex. 668. See also, note 13 L. R. 9. Ellison V. State, 125 Ind. 492, 24 N. E. R. 739; Holman v. Austin, supra; Piper v. Pierson, 2 Gray (Mass.) 120, 61 Am. Dec. 438. 10. In re Abeles, 12 Kan. 451. 11. Brady v. Veazie, 47 Me. 85 ; Ex parte Mc Kee, 18 Mo. 599. 12. United States v. Hudson, 7 Cranch (U. S.) 32. 642 THE LAW OF EVIDENCE § 22. Same. Executive, judicial and legislative officers. — As a general rule, neither executive, judicial or legislative officers are exempt from serving as Mritnesses when really needed to act in that capacity. This rule has been held to apply to the president of the United States, ^^ to judges of county courts,^* to members of congress when not attending a session, or going to or returning from congress,^^ and to members of the presi- dent's cabinet. -^^ When a, person serves as a witness before con- gress he is exempt from arrest, but not from the. service of a subpoena or summons.^'' § 23. Same. Ambassadors and consuls. — Am- bassadors and consuls, who are exempt from, process of the courts, may not, of course, be com- pelled to testify.^* § 24. Obligations of a witness. — A witness who is subpoenaed is bound to attend court. If he refuses he may be compelled to do so by at- tachment for contempt.^" Serious illness of him- 13. United States v. Burr, '2S Fed. Cas. No: 14, 692d. 14. United States v. Caldwell, 25 Fed. Cas. No. ,14, 708, 2 Dall. (Pa.). 333, 1 L. ed. 404. 15. United States v. Cooper, 25 Fed. Cas. No. 14, 861, 4 Dal. (Pa.) 341,- 1 L. ed. 859. 16. United States v. Smith, 27 Fed. Cas. No. 16, 342, 3 Wheel. Cr. 100. -17. Wilder v. Welsh, 1 MacArthur (D. C.) 566. 18. United States v. Trumbull, 48 Fed. R. 94. 19. Wilson V. State, 57 Ind. 71 ; Stephens v. People, 19 N. Y. * 549. ~ ^ EXAMINATION OF WITNESSES 643 self,^" or of a member of his family/^ constitutes a sufificient excuse. But great personal incon- venipnce,^^ or mere poverty,^^ is insufficient. A third party who causes a witness to ,be absent from court is liable for contempt.^* Where a witness is served with a subpoena duces tecum he is bound to attend cour|; and bring with him the documents described.^^ 'Refusal to , do so renders him liable for contempt.^^ The relevancy and materiality of the testimony which he is called upon to give are questions for the court to decide and not the, witness. Moreover, where the witness claims that the documents -which he is called upon to produce are confi- dential communications,^^ or of such a nature as to subject him to a criminal prosecution,^^, the question is one for the court to decide. § 25. Statutory regulations. — The legislature may malce reasonable regulations pertaining to the attendance of witnesses on behalf of a per- 2Q. State v. Hatfield, 72 Mo. 578. 21. Foster v. McDpnald, 12 Heisk (Tenn.) 619. 22. Pipher v. Lxjdge, 16 Serg, & R. (Pa.) 214. 23. People v. Davis, IS Wend. (N. Y.) 603. 24. Montgomery v. Palmer, 100 Mich. 436; Savin's Case, 131 U.' S. 267. 2S., Bull V. Loveland, 10 Pick. (Mass.) 9; Murray v. Elston, 23 N.. J. Eq. 212. , 26. United States Exp. Co. v. Henderson, 69 la. 40. 27. Bradley v. Veazie, 47 Me. 85 ; United Sta.tes v. Term. Ry. Assoc, 148 Fed. R. 486. 28. Durkee v. Leland, 4 Vt. 612. 29. United Stajtes v. Reyburn,'6 Pet. (U. S.) 352. 644 ■- THE LAW OF EVIDENCE son accused of crime. ^° Thus, it may limit the number of w.itnesses who shall be summoned on behalf of the accused, where the expense is to be borne by the county or state. *^ But witnesses which he shows are material must be sumipon- ed.^^ It has been held that a rule of court limit- ing the number of witnesses that may be called on behalf of a person accused of crime is void.^* It also has been held that the right of an accused person to subpoena witnesses at the expense of the state is limited to capital cases. ^* Where the accused is able to bear the expense of procuring the witnesses he must do so.^^ In many jurisdic- tions statutes provide that the fees must be paid or tendered in advance to compel the attendance of witnesses.^® It is otherwise, however, where witnesses are summoned on behalf of the state in a criminal case.*'' Moreover, in some jurisdic- tions this rule is applicable to witnesses sum- *\ 30.' Moore v. "State, 59 Fla. 23, S2 So. R. 971. ' 31. State V. fi-reddy, 117 La., 121, 41 So. R. 436, 116 Am. St. Rep. 19S ; State v. O'Brien, 18 Mont. 1, 43 Pac. R. 4091, ,44 Pac. R. 399. 32. State v. Freddy, supra. 33. State y. Gideon, 119 Mo. 94, 24 S. W. R. 748, 41 Am. St. Rep. 634. See also, S8 Ark. S44, 25 S. W. R. 840. 34. State v. Archer, 54 N. H. 465; Com. v. Williams, 13 Mass. 501. But see Enstace v. Greenville County, 42 S. C. 190; 20 S. E. R. 88. 35. State v. Archer, supra. 36. Atwood V. Scott, 99 Mass. 177, 96 Am. Dec. 726; Bliss v. Brainard, 42 N. H. 255 ; Kipp v. Dawson, 59 Minn. 82. 37. West V. State, 1 Wis. 209. , ' EXAMINATION OF WITNESSES 645 moned by the accused. It also has been applied in civil cases. ^^ § 26. Admissions and testimony given at a former trial. — An admission, by the prosecution in a criminal case, as to the testimony a witness would give if present, does not deprive the ac- cused of his right to process to compel his at- tendance in court. ^^ Nor does the introduction of testimony given by a witness at a former trial deprive the accused of this right.*" But actual ^attendance of witnesses in all cases is not guar- anteed.*^ On the other hand, where ,the at- tendance is procurable the officer must exercise at least ordinary diligence.*^ § 27. Exclusion of witnesses. — The question of sequestering the witnesses during the trial is one upon which the decisions are not harmon- ious. Some hold that this is a matter which rests in the sound discretion of the court.*^ Others hold that it is a matter which is demandable of 38. Bozek v. Redzinski, 87 Wis. 52S. 39. State v. Richard, 127 La. 413, S3 So. R. 669. But see Relly V. State, 160 Ala. 48, 49 So. R. 535. 40. People V. Bossert, 14 Cal. App. Ill, 111 Pac. R. IS; State V. Wilcox, 21 S. D. 532, 114 N. W. R. 687. 41. State V. Pope, 78 S. C. 264, 58 S. E. R. 815. 42. Smith v. State, 118 Ga. 61, 44 S: E. R. 817; State v. Pope, supra; State v. Huff, 116 Mo. 459, 61 S. W. R. 900,, 1104. 43. McQelan v. State, 117 Ala. 140, 23 So. Rep. 653; People V. Gonsidine, 105 Mich. 149, 63 N. W. R. 196; ^Gom. v. Thompson, 159 Mass. 646 THE LAW OF EVIDENCE right.** The former view is supported by the weight of authority. It has obtained since edrly times. *^ But it has not been free from criticisrn. "We have no hesitation in declaring that such a doctrine cannot stand" the test of principle, and that it is utterly incompatible with the perfect enjoyment of the right of a fair trial guaranteed by the laws to the citizens of this country."*? Parties to' the record, who testify in the case, may not be excluded. They are entitled to be present thruout the trial.^'^ Also attorneys in the case,*^ and agents of a party to the suit whose; presence is desirable.*^ Moreover, ex- pert witnesses have been held to come \within this exception.^" § 28. Same. Effect of refusal to obey the court's order. — Upon this question also the de- cisions are not harmonious. Some courts hold that a witness who disobeys the court's order to be absent from the court room while other wit- nesses are testifying may be debarred from testi- fying in the case.^^ This view, however, is not 44. Shaw V. ^tate, 102 Ga. 660, 29 S. E. R. 477; Watts v. Holland, 56 Tex. S4. 45. Vaughan's Trial, 13 How. St. Tr. 485, 494. 46. Rainwater v. Elmore, 1 Heisk. (Te'mi.) 363, 365. 47. State v. Kelly,' 97 N. C. 404; Mcintosh v. Mcintosh, 79 Mich. 198, 44 N. W. R. 592. 48. State v. Ward, 61 Vt. 153, 179, 17 At!. R. 483. 49. The Zenia Real Est. Co. v. Macy, 147 Imd. 568, 577. 50. Jdhnson v. State, 10 Tex. App. 571. il. Bulliner v. The People, 95 IlT. 394; The People v. Burns, 67 Mich; 537 ; Grant v. State, 89 Ga. 396. EXAMINATION - OF WITNESSES ,647 I sound. Unless the party who calls the witness is at fault, as regards the latter's dis6bedience, he should not be deprived of the benefit of his testimony. This is undoubtedly the better view. The disobedience of the witness might effect his ' credibility, but it should' ^ot deprive the party who calls him of the benefit of his testimony. As said by Coffey, J. : 'The rule to be deduced from these cases, is that, when a party is without fault and a witness disobeys an order directing the separation of the witnesses, the party shall not be denied the right of having the witness testify, but the conduct of the witness may, go to the jury upon ^e question of his credibility."^^ And in- such case counsel may comment upon the misconduct of the witness with the view of im- peaching his credibility.^^ Moreover, the wit- ness may be punished for contempt.^* § 29. The examination in chief. In general. — As a general rule, the right to begin the intro- ductiqn of testimony belongs to the plaintiff. This is owing to the fact that th^e burdfn of proof rests upon him. After the empaneling of the jury, it is customary for tlie plaintiff's coun- sel to make a brief statelnent of the facts of the case. The first witness is then called to the stand, and, after being sworn, counsel for the 52. Taylor v. The State, 130 Ind. 66, 70. 53. McHugh V. State, 42 Ohio St. 1S4, 1S8; Grimes v. Mar- tin, 10 la. 347. 34. Taylor v. State, supra; State v. Falk, 46 Kan. 498, 26 Pac. R. 1023; McHug-h v. State, 42 Ohio St. 154, 158. 648 THE LAW OF EVIDENCE plaintiff proceeds to qviestion him. 'All the ma- terial facts of the case which counsel intends to prove by him should be elicited during this direct examination. Courts do not allow wit- nesses to give their testimony by piece meal.^* § 30. Control of the presiding judge.— The manner and scope of the examina-tion of wit- nesses, within certain limits, are matters which rest in the sound discretion of the court. "A circuit judge presiding at a trial is not a mere moderator between contending parties ; he is a sworn officer, charged with grave public duties, In order to establish justice and maintain truth and prevent wrong, he has a Jar^e discretion in the application of rules of practice, and his actipn in this respect will not be reversed by this court, unless it exhibits an abuse of discretion result- ing in injustice."^® Thus, the trial judge may- relax the rule which requires a party io intro- duce, in the first instance, all of his testimony;*'^ allow the prosecution to reopen'the case after the defense ,has rested ;^^ allow new evidence after both parties have rested;^® exclude ques- 55. Belden v. Allen, 61 Conn. 173, 23 Atl. 963; Alquist v. Eagle Iron Wo^ks, 126 la. 67, 101 N. W. R. S20; Mar- shall V. Davles, 78 N. Y. 414. 56. Huffman v. Cauble, 86 Md. S91, 596. 57. Agate v. Morrison, 84 N. Y. 672; People v. McNamara,. 94 Cal. 509. 58. State v. Rose, 33 La. Ann. 932; Green v. State, 119 Ga. 120, 45 S. E. R. 990. 59. Delaney v. Mulligan, 148 Pa. St. 157; Joplin Water- works Co. V. Joplin, 177 Mo. 496, Id S, W. R. 960; Chi- cago City Ry. Co. v. Carroll, 206 III. 318, 68 N. E. R. 1087.. EXAMINATION OF WITNESSES 649 tions which tend to mislead the witness,*** or the jury;®^ prevent counsel from asking improper questions ;^^ exclude indefinite and uncertain questions f^ exclude questions which call for merely cumulative,"* speculative,*^ or hearsay,** evidence ; prevent opposing counsel from mak- ing needless interruptions;*'^ prevent the witness from being too verbose;*^ exclude questions which seek to elicit testimony outside the issue,*® and limit the number of witnesses/* § 31. Preliminary questions. — Within reason- able limits, questions of a preliminary nature are allow^able although they do not relate directly 60. Brashears v. Orme, 93 Md. 442, 49 Atl. R. 620. 61. State V. BIydenburg, 13S la. 264, 112 N. W. R. 634, 14 Ann-. Cas. 443. 62. -Roche v. Baldwin, 143 Cal. 186, 76 Pac. R. 956; Skaggs V. State, 108 Ind. S3, 8 N. E. R. 695. 63. Lotiisville, etc., Ry. Co. v. Bargainier, 168 Ala. 567, 53 So. R. 138 ; Strand v. Grinnell Auto. Gar. Co., 136 la. 68, 113 N. W. R. 488. '64. Lake Shore, etc., Ry. Co. v. Brown, 123 111. 162 ; Hears v. Cornwall, 73 M'ich. 78. 65. Alabama Gt. So. Ry. 'Co. v. Yount, 165 Ala. 537, 51 So. 737. 66. United States' v. Fidelity, etc., Co. v. Dajnskibsaktiesel- skabet Habil, 138 Ala. 348, 35 So. R. 344. 67. State v.. Scott, 80 N. C. 365. 68. State v. Farley, 87 la. 22, S3 N. W.. R. 1089. 69. Atl. Coast Line Ry. Co. v. Crosby, 53 Fla. 400, 43 So. R. 318. 70. Barhyte v. Summers, 68 Mich. 341, 36 N. W. R. 93 ; Green V. Phoenix Mut. Life Ins. Co., 134 111. 310, 25 N. E. R. 583, 10 L. R. A. 576. 650 THE LAW OF EVIDENCE to matter relevant to the issue.'^^ Thi:^s, a wit- ness may be asked his age, his place of resi- dence/^ etc. A female witness may be asked if she'is a widow ;''^ and a detective may be asked to state his connection with the case/* etc. § 32. Leading questions. — A leading question is one which is so framed that it suggests to the witness the answer desired.''^ The mere form of the question, however, does not necessarily de- termine the matter.^" A question which sug- gests to the witness an answer unfavorable to the questioner is not objectionable.''''' At common law, a categorical question embodying a ma- terial fact was considered necessarily leuding, ^ and therefore objectionable.^^ The modern view, however, is less rigid.'''' Mr.- Bentham says, "A question is a leading one, when it indi- cates to the witness the real or supposed fact which the examiner expects and desires to have 71. People V. Pope, 108 Mich. 361, 66 N. W. R. 213 ; Swygart V. Willard, 166 Ind. 2S, 76 N. E. R. 755. 72. Fittman v. Catnp, 94 N. C. 283 ; LoUar v. State, 167 Ala. 112, 52 So. R. 745. 73. Cooper v. State, 63 Ala. 80. 74. People V. Wilkinson, 14 N. Y. Suppl. 827. 75. Coogler v. Rhodes, 38 Fla. 240, 21 So. R. 109, 56 Am. St. Rep. 170; Williams v. Smith, 29 R. I. 562, 72 Atl. R. 1093. 76. Tinsley v. Carey, 26 Tex. 350. 77. Cochran v. Miller, 13 la. 128. 78. String-fellow v. State, 26 Miss. 157, 59 Am. Dec. 247; Rosenkovitz v. United R., etc., Co., 108 Md. 306, 70 Atl. R. 108. 79. Williams v. Smith, supra; Peebles v. O'Gara Coal Co., 239 111. 370, 88 N. E. R. 166. EXAMINATION OF WITNESSES 65 F confirmed hy his answer. Is not your name so ,and so? Do you reside in such a place? Are you not in the service of such and such a per- son? Have you not lived so many years with, him? It is clear that under this form every sort of information may be conveyed to the witness in disguise."*" The following questions, how- ever, have been held proper: "Do you know whether or not he bought his father's home- stead?"^^ "From your knowledge and exper- ience as engineer, was it possible to have stopped the train after you saw the plaintiff on the track ?"*^ "Did you make any agreement at that time?"«» "Did you court her?"** "Did you do. all in your power to prevent the accident?"®^ "Did the noise sound as if the person was in joy or distress?"*® "When you hailed the car, did you stop on the sidewalk, or did you continue walking until you got near the car?"*'' On the other hand, the following questions- have been held improper: "How did you ad- dress the defendant in respect to his being one of the persons concerned?"** "What had you 80. Ben'tham,- Rationale of Judicial Evid., Bawrings ed. VL 338. 81. Robertson v. Graver, 88 la. 381, 55 N. W. R. 492. 82. Galveston, H. & S. A. Ry. Go. v. Duelin, 86 Tex. 450. 83. Dudley v. Elkins, 39 N. H. 78. 84. Greenup v. Stoker, 8 Til. 202 (breach of promise case). 85. Spring-field Gon. Ry. Go. v. Welsih, 155 111. 511. 86. Malcik v. State, 33 Tex. Gr. Rep. 14. ' 87. Olferman v. Union Depot Ry. Go., 125 Mo. 408. 88. People v. Mather, 4 Wend. (N. Y.) 229. ^652 THK LAW OF EVIDENCE seen in the way of intoxicating liquors being sold in that building?"^® "Do you know any circum- stances which will show you that the defendant knew his son was at school P"^" For other illus- trations see Thompson on Trials, § 358. The fact that the witness is apprised of the answer desired by a leading question which is "withdrawn does not impair his answer given in response to a subsequent question properly framed.'^ The mere fact that a question may be answered by "Yes" or "No" does not render the ■question leading. It must indicate which answer is expected or desired.®^ The term "leading," as used in this connection, is a relative term. Thus the form of question -used might be leading when applied to one set ■of facts and not leading when applied to another set of facts."^ As said by Mr. Best, "It should never be forgotten that 'leading' is a relative, not an absolute term. There is no such thing as 'leading' in the abstract, for the identical form •of question which would be leading of the gross- est kind in one case or state of facts might not only be unobjectionable, but the very fittest mode of interrogation in another."®* ■89. State V. Schilling, 14 la. 455. 90. Floydv. State, 30 Ala. 511. ■91. Allen v. Hartford L. Ins. Co., 72 Conn. 693, 45 Atl. R. 955. 92. Floyd v. State, supra; Spear v. Richard-son, 37 N. H. 23; Kemmerer v. Edelman, 23 Pa. St. 143. ■93. People V. Nino, 149 N. Y. 317; Safiford v. Horn, 72 Miss. 470; Norton v. Parsons, 67 Vt. 526. •94. Best on Evid. (10th ed.), §641. EXAMINATION OF WITNESSES 655. § 33. Same. Cases in which leading questions, are allowable. — As a general rule, leading ques- tions are not allowable in the direct examina- tion.®' Under some circumstances, however, they are perfectly proper. Moreover, the sub- ject is one in which the trial judge has large dis- cretion.®® Ordinarily, the ruling of th^ court is not a ground for appeal."'' But in a clear case of abuse of discretion it is ground for reversal.®* In the following classes of cases leading ques- tions are allowable: (i) Where the purpose is merely to elicit certain preliminary or introduc- tory information, such as the name of the wit- ness, his place of residence, etc.®® (2) Where 'the witness manifests hostility against the party who has called him, or bias in favor of the ad- PS. Briggs V. People, 219 III. 330, Id N. E. R. 499; Buckman. V. phila., etc., Ry. Co., 227 Pa. St! 277, 75 Atl. R. 1069; Weatherly v. Nash., etc. Ry. Co., 166 Ala. S7S, 51 So. R. 959; Engleking v. Kansas City, etc., Ry. Co., 187 Mo. 158,, 86 S. W. R. 89; Georgetown v. Groff, 136 Ky..662, 124 S. W. R. 888. 96. McDonald v. State, 118 Ala. 672, 23 So. R. 637; State v. Burns, 119 la. 663, 94 N. W. R. 238; Daugherty v. Heck- ard, 1«9 111. 239, 59 N. E. R. 569; St. Clair v. United States, 154 U. S. 134. 97. Lane Bros. & Co. v. Bansennan, 103 Va. 146, 48 S. E. R. 857, 106 Am. St. Rep. 872; People v. Fung Ah Sing, 70^ Cal. 8. 98..Goudy v. Werbe, 117 Ind. 154; Northern Pac. Ry. Co. v. Urlin, 158 U. S. 271. 99. People v. Hodge, 141 Mich. 312, 104 N. W. R. 599, US- Am. St. Rep. 525; Cronan v. Cotting, 99 Mass. 334. ■654 THE LAW OF EVIDENCE verse party."" (3) In the cross-examination.^ (4) Where the general memory of the w^itness is exhausted.^ (5) Where the question of identi- fication is involved.* (6) Where the witness is of tender years,* infirm,^ illiterate,® etc. (7) . Where the witness is interrogated by the court. Where a question is framed in the alternative it may, or may not, be leading. It depends upon whether or not it suggests the answer desired.'^ Where the question is whether or not a given 100. Bradshaw v. Coombs, 102 111. 428; People v. Gillespie, 111 Mich. 241, 69 N. W. R. 490; Cornway v. State, 118 Ind. 482; The Charles Morgan, US U. S. 69; Becker v. Koch, 104 N. Y. 394, 401, 10 N. E. R. 701 ("An axiverse witness may be cross-examined, and leading questions may be put to him by the painty calling him, for the very sen- sible and sufficient reason that be is adverse, and that the danger arising from such a mode of examination by the party calling a friendly and unbiased witness does not exist")- ', • 1. Moody V. RoweM, 17 Pick. (Mass.) 490, 28 Am. Dec. 317; Fox V. Steever, 156 111. 622, 40 N. E. R. 942. 2. Coon V.' People, 99 111. 368, 39 Am. Rep. 28; Herring v. Skaggs, 73 Ala. 446; Farrell v. 'Boston, 161 Mass. 106. 3. People V. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122. 4. Pblson v. State, 137 Ind. 519; People v. Harlan, 133 Cal. 16, 65 Pac. R. 9; State v. Watson, 81 la. 380, 46 N. W. R. 868. 5. Cheney v. Arnold, 18 Barb. (N. Y.) 434.. 6. State V. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026; State v. Burns, 119 la. 663, 78 N. W. R. 681. 7. Chicago City Ry. Co. v: Shaw, 220 111. 532, 11 N. E.^R. 139; Annison Mfg. Co. v. So. Ry. :Co., 145 Ala. 351, 40 So. R. 965; Pag« v. Parker, 40 N. H. 47; State v. Wick- Kff, 95 la. 386, 64 N. W. R. 282. EXAMINATION OF WITNESSES 655 statement is true f or whether or not the witness knew that a given person ran a house of prosti- tution in a given town ;* or whether or not there was any agreement as to the witness taking pos- session of a given horse on default of payments, and if so what it was/" it is not objectionable on the grovmd that it is leading. On the other hand, a particular'phrase, such as '*don't you know;"" "wouldn't it he;'"'^ "is it not a fact;"^* "isn't, "^* etc., may render the ques- tion leading. The propriety of asking leading questions is a matter which rests largely in the discretion of . the court. Where the witness is illiterate,^^ ignorant,^® possessed of a poor understanding,^'' embarrassed,^* not familiar with the English 8. Williams V. Kane (Tex.), SS'S. W. R. 362. 9. Coogler v. Rhodes, 38 Fla. 240, 21 So. R. 109, 56 Am. St. Rep. 170. 10. Davis V. Millings, 141 Ala. 378, 37 So. R. 737. 11. Williamson Iron Co. v. McQueen, 144 Ala. 265, 40 So. R. 306. 12. Prather v. Chicago So. Ry. Co., 221 111. 190, 77 N. E. R. 430. 13. Hoagland v. Canfield, 160 Fed. R. 146. 14. Huntington v. Lusch, 33 Ind. App. 476, 70 N. E. R. 402. 15. Kozik V. Czapiewski, 136 Wis. 70, 116 N. W. R. 640. 16. Western Tel. Co. v. Teague, 134 Ky. 601, 121 S. W. R. 484; Ellis v. State, 25 Fla. 702, 6 So. R. 768. 17. State V. Drake, 128 la. 539, 105 N. W. R. 54; Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. R. 215. 18. State V. Drake, supra; MeCann v. Peopk, 226 111. 562, 80 N. E. R. 1061. 656 THE LAW OF EVIDENCE language,^^ supersensitive,^" etc., it is customary to allow leading questions. It is also customary to allow leading questions as to preliminary or introductory matters ;^^ also where the purpose is to refresh the memory of the witness and aid his recollection.^^ A question which suggests an answer unfavorable to the party asking it is not objectionable because it is leading. ^^ For further illustrations of leading questions see cases in foot-note ^*- For further illustra- tions of questions which have been held not lead- ing see cases in foot-note ^^. And for a general discussion of the subject see note, 47 Am. Dec. 82-85. 19. Selenak v. Selenak, ISO 111. App, 399 (in this case the witness was badly tongue-tied and deaf) ; People v. Jen- sen, 66 Mich. 711, 33 N. W. R. 811. 20. Carter v. State, 59 Tex^Cr. R. 73, 127 S. W. R. 215. 21. Peebles v. O'Gara Coal Co., 239 111. 370, 88 N. E. R. 166; Heflferlin v. Karlman, 29 Mont. 139, 74 Pac. R. 201; Huntoon v. O'Brien, 79 Mich. 227, 44 N. W. R. 601. 22. Gray v. Kelley, 190 Mass. 184, 76 N. E. R. 724; State v. Duestrow, 137 Mo. 44, 38 S. W. R. 554, 39 S. W. R. 266; Mann v. State, 134 Ala. 1, 32 So. R. 704 23. Cochran v. Carey, 26 Tex. 350. 24. Granger v. Darling, 156 Mich. 31, 120 N. W. R. 32; Col- lins V. Gleason Coal Co., 140 la. 114, 115 N. W. R. 497, 118 N. W. R. 36, 18 L. R. A. N. S. 736; Hill v. State, 156 Ala. 3, 46 So. R. 864; Yoch v. Home Mut. Ins. Co., HI Cal. 503, 44 Pac. R. 189, 34 L. R. A. 857 ; Hein v. Milde- brandt, 134 Wis. 582, 115 N. W-. R. 121; Roth v. Travel- ers' Prot€c. Assoc, 102 Tex. 241, 115 S. W. R. S. W. R. 31, 132 Am. St. Rep. 871. 25. Mayville v. French, 246 111. 434, 92 N. E. R. 919; In re Du Bois, 164 Mich. 8, 128 N. W. R. 1092; Combs v. Com., EXAJtINATION OF WITNESSES 657 § 34. Questions that are objectionable on other grounds.— As heretofore stated, leading questions, in the direct examination, are usually objectionable. There are also other grounds which render questions objectionable. Thus, questions may be objectionable because they are too general ;^® or too indefinite ;*'' or too broad ;^* or misleading;^® or argumentative;*" or because they call for improper testimony. ^^ The- mere fact that the trial court allows counsel to ask impudent or insulting questions is not a ground 90 Va. 88, 17 S. E. R. 881; Fitch v. Mason City, etc.. Traction Co., 116 la. 716, 89 N. W. R. 33; Olfemian v. Union Depot Ry. Co., 125 Mo. 408, 28 S. W. R. 742, 46 Am. St. Rep. 483. 26. State v. Woodard, 132 la. 675, 108 N. W. R. 753 ; Phillips V. State, 162 Ala. 14, 50 So. R. 194; State v. High, 122 La. 521, 47 So. R. 878; Ennis v. Little, 25 R. I. 342, 55 Atl. R. 884; State v. Minck, 94 Minn. SO, 102 N. W. R. 207. 27. Bassett v. Shares, 63 Conn. 39, 27 Atl. R. 421 ; Schmoe v. Cotton, 167 Ind. 364, 79 N. E. R. 184; Roche v; Baldwin, 143 Cal. 186, 1(> Pac. R. 956; Strickland v. State, 151 Ala. 31, 44 So. R. 90; Strand v. Grinnell Auto. Gar. Co., 136 la. 68, 113 N. W. R. 488. 28. Orr V. Jason, 1 111. App. 439 ("Jusit state what the ar- rangement between you and your father ■was?"). 29. Brashears v. Orme, 93 Md. 442, 49 Atl. R. 620; State v. Blydenburg, 135 la. 264,, 112 N. W. R. 634, 14 Ann. Cas. 443. 30. Rollins V. State, 160 Ala. 82, 49 So. R. 329. 31. Atl. Coast Line Ry. Co. v. Crosby, 53 Fla. -400, 43 So. R. 318; Pitman v. State, 153 Ala. 1, 45 So. R. 245"; Ala. Gt. So. Ry. Co. V. Yount, 165 Ala. 537, 51 So. 737; Sylvester V. Ammons, 126 la. 140, 101 N. W. R. 782. 658 THE LAW OF EVIDENCE for reversal.^^ The court, however, should pro- tect the witness when such questions are asked.^^ A question which asks merely for the conclusion of the witness rather than actual facts is objec- tionable and should be excluded.^* A question which is so vague that it is not susceptible of a definite answer is also objectionable and should be excluded. ^^ A question framed in the alter- native is objectionable and should be excluded unless the peculiar circumstances of the case render such a question necessary in order to elicit the truth.^* A question which asks for both actual facts and also the conchision of the witness is objectionable.^^ While repeating- questions to the witness which he has answered should ordinarily be discouraged, yet this is a matter which rests in the sound discretion of the court. ^* A question which is good in part and bad in part should be excluded.*® §35. Irresponsive answers. — An answer which is not responsive to the question asked should 32. People v. Roat, 117 Mich. 578, 76 N. W. R. 91. 33. People v. Eaton. . 34. Amer. Car, etc., Co. v. Hill, 226 111. 227, 80 N. E. R. 784 ("What were they aiming to do?"). 35. Birmingfeam R., etc., Co. v. Hayes, 153 Ala. 178, 44 So. R. 1032. 36. Webster v. Clark, 30 N. H. 245. 37. Bell V. State, 48 Tex. Cr. R. 256, 87 S. W. R. 1160. 38. Tucker v. Buffalo Cotton Mills, 76 S. C. 539, 57 S. E. R. 626, 121 Am. St. Rep. 957. 39. Slaughter v. Heath, 127 Ga. 747, 57 S. E. R. 69, 27 L. R. A. N. S. 1 ; Fleming v. State, 150 Ala. 19, 43 So. R. 219. EXAMINATION OF WITNESSES 659 be Stricken out, if objected to by the party ex- amining the witness.*" But the mere fact that it is irresponsive to the' question does not render the answer inadmissible.*^ If the party who asks the question does not request that the irre- sponsive answer be stricken out it may stand.*^ Upon objection, however, by the party who" asks the question, it should be stricken out.*^ More- over, the fact that several questions and answers have intervened between the irresponsive answer and the mot'ion to strike out the latter does not render the court's order to strike out the irre- sponsive answer improper.** § 36. Illustrations of irresponsive answers. — The following answers have been held objection- able because irresponsive to the questions stated: "Didn't you say that was a sporting house?" "It had the reputation of being one."*^ "What is the value of your services in that case?" "I have sent a bill for $500."*^ "State what he (the defendant in a rape case) did." 40. Murphy v. Coppieters, 136 Cal. 317, 68 Pac. R. 970. 41. In re Dunahugh, 130 la. 692, 107 N. W. R. 925 ; Merkle V. Bennington Tp., 58 Mich. 156, 24 N. W. R. 776, 55 Am. Rep. 666. 42. Chicago, etc., Ry. Co. v. Woodward, 47 Kan. 191, 27 Pac. R. 836. 43. State V. Skillmati, 76 N. ]'. L. 464, 70 Atl. R. 83 ; Murray V. Walker, 83 la. 202, 48 N. W. R. 1075; Fleming v. Lunsford, 163 Ala. 540, 50 So. R. 921. 44. Barnard v. Bates, 201 Mass. 234, 87 N. E. R. 472. 45. Ramsey v. Smith, 138 Ala. 33, 35 So. 325. 46. Chicago v. Sutton, 136 111. App. 221. 66o THE LAW OF EVIDENCE "He was always sitting trying to hug every wo- man that came in the house."*^ "What was it worth to keep the decedent?" "I would not keep her for less than $5 a week."*^ "State whether or not John Doe was a professional gambler." "He was not a straight hand to gamble."*® On the other hand, ihe following answers to the questions stated have been held not objec- tionable because not sufficiently responsive: "Was the voice you heard similar to the voice of Richard Roe" (the prosecuting witness)? "I think it was."*" "What do you mean by saying that testratrix was weak mentally?" "Easily in- fluenced."'''*' "What effect did the construction of the Manhattan elevated railway have on your property?" "It destroyed my business entire- ly."" § 37. Impressions may fall short of positive assurance. — The fact that a witness is unable to testify positively does not render his testimony inadmissible. Where he is unable to recollect positively he may state his impression or belief. "An impression as to a past fact may mean per- sonal knowledge of the fact as it rests in the memory, though the remembrance is so faint 47. McQueary v. People, 48 Colo. 214, 110 Pac. R. 687. See also, Barnes v. Danville St."Ry., etc., Co., 235 111. 566, 85 N. E, R. 921, 126 Am. St. Rep. 237. 48. Murphy v. McCarthy, 108 la. 38, 78 N. W. R. 819. 49. Pritchett v. Johnson, 5 Ne'b. 49, 97 N.- W. R. 223. 50. In re Snowball, 157 Cal. 301, 107 Pac. R. 598. 51. Johnston v. Manhattan Ry. Co., 14 N. Y. Suppl. 897. EXAMINATION OF WITNESSES 66l" that it cannot be characterized as an undoubting recollection. ... In this sense the impression of a witness is evidence, however indistinct and unreliable the recollection may be. No line can be drawn for the exclusion of any record left upo;i the memory as the impress of pergonal knowledge because of the dimness of the in- scription."^^ "Witnesses are not required to give their testimony with absolute positiveness. If the fact is impressed on the memory, but the recollection does not rise to positive assurance, it is still admissible to be' weighed by the jury."^^ It is to be observed, however, that tlie impres- sion or belief must be founded upon personal knowledge and not upon mere conjecture. § 38. Same. Illustrations. — In the following cases the testimony was held admissible : The witness "was confident," but "would not swear;""* had "belief" as to identity of a stolen mare f^ had "belief" as to the identity of a per- son;^® had "belief" as to the existence of a trade usage ;^''^ testified to the "best of my recollec- tion;"-'^ testified to the "best of my knowledge, belief and recollection;"^^ testified that it "ap- 52. State v. Flanders, 38 N. H. 332. 53. Hoitt V. Moulton, 21 N. H. 588. 54. Lewis v. Freeman, 17 Me. 260. 55. State V. Weber, 156 Mo. 249, 56 S. W. R. 729. 56. State v. Cuslienberry, 157 Mo. 168, 56 S. W. R. 737. 57. Hamilton v. Nickerson, 13 Allen (Mass.) 352. 58. Rhode v. Louthain, 8 Blackf. (Ind.) 413; McGarrity v. Byington, 12 Cal. 426, 430. 59. Com. V. Kennedy, 170 Mass. 18, 48 N. E. R. 770. 662 THE LAW OF EVIDENCE peared to be ;"*" testified that given handw^riting "looks like it, dan't say, I believe it to be his writing;"*'^ testified that his "impression" was so and so, etc.®^ § 39. Refreshing of memory. Adopting past recollection. — It is important to observe that a marked distinction exists between refreshing a present recollection and adopting a past recol- lection. A person who acquired knowledge in the past of certain facts by observation may be unable to testify to them owing to lack of mem- ory. In such case it is proper to submit to him a paper or memorandum which would naturally tend to refresh his memory. If its effect is to excite in his mind an independent recollection of facts to which it refers, or with which it is con- nected, he may testify to those facts independ- ently of the paper.'^* In such case the authorship of the paper is immaterial.®* Its pui^pose is merely to refresh present recollection. The 60. Bouldm v. Massie's Heirs, 7 Wheat. (U. S.) 153. 61. Shrtler v. Bremer, 23 Pa. 413. 62. Duvall's Executor v. Darby, 38 Pa. 59; Carrington v. Ward, 71 N. Y. 364. 63. Com. V. Burton, 183 Mass. 461, (,1 N..E. R. 419; John- son V. State, 125 Ga. 243, 54 S. E. R. 184; Birmingham Ry., etc., Co. v. Seaborn, 168 Ala.- 658, 53 So. R. 241 ; State V. Hassan, 149 la. 518, 128 N. W. R. 960; Goodwin V. Union Ins. Co., 163 Mich. 41, 127 N. W. R. 790; San- ders V. Wakefield, 41 Kan. 11, 20 Pac. R. 518; Taft v. Little, 178 N. Y. 127, 70 N. E. R. 211. 64. Com. V. Ford, 130 Mass. 64; Huff v. Bennett, 6 N. Y. 337; Davis v. Field, 56 Vt. 426. EXAMINATION OF WITNESSES 663 paper, itself in such case is inadmissible.^^ As said by Ellenborough, L. C. J., "If upon looking at any document he can so far refresh his mem- ory as to recollect a circumstance, it is sufficient, and it makes no difiference that the memorandum is not written by himself, for it is not the mem- orandum that is evidence, but the recollection of the witness."*^ And as said by Earl, J., "A wit- ness may, for the purpose of refreshing his mem- ory, use any memorandum, whether made by himself or another, written or printed, and when his memory is thus refreshed, he must testify to facts of his own knowledge, . the memorandum itself not being evidence."®^ ' If the memorandum does not excite in the mind'of the witness an independent recollection of the facts to which it refers, or with which it is connected, but convinces him of the truth of those facts by reason of his previous connection with the paper, he may testify to those facts by reason of his confidence in the correctness of the memorandum, provided it was made contem- 1 poraneously with the transaction to which it re- fers, or soon afterward.*® "Nor was it necessary that the witness should have had an independent recollection. . . . All that is required is that he 65. Com. V. Jeffs, 132 Mass. 5. 66. Henry v. Lee, 2 Chitty 124. 67. Howard v. McDonough, 77 N. Y. 592. 68. Enid First Nat. Bank v. Yeoman, 14 Okla. 626, 78 Pac. R. 388; Swartz v. Chickering, 58 Md. 290; O. S. Richard- son Fueling Co. v. Seymour, 235 111. 319, 85 N. E. R. 496.' 664 THE LAW OF EVIDENCE be able to swear that the memorandum is cor- rect. There seem to be two classes of cases on this subject : (i) Where the witness by referring to the memorandum has his mempry quickened and refreshed thereby; so that he is enabled to swear to an'actual recollection; (2) Where the witness after referring to the memorandum undertakes to swear to the fact, yet not because he remembers it ; but because of his confidence in the correctness of his memorandum. In both <:ases the oath of the witness is the primary, substantive evidence relied upon; in the former the oath being grounded on actual recolliection, and in the latter on the faith reposed in the verity of the memorandum. "*'* As previously stated, if the memorandum re- freshes the present recollection of the witness, and he testifies independently of it, it is imma- terial by whom it was made. If, however, it does not refresh his memory, and he has no independ- ent recollection of the facts stated therein, but is convinced of the truth of the statements by reason of his past connection with the memoran- dum, still, he may not testify to its contents ■69. Davis v. Field, 56 Vt. 426. See also, Bank v. Zorn, 14 S. C. 444 ("The rule upon this subject, in its 'broadest out- line, embraces two classes of cases; first, where the wit- ness, after referring to the pajper, speaks from his awn memory and depends upon^ his own recollection as to the facts testified to; second, where he relies upon the paper and testifies only because he finds the facts contained therein."). EXAMINATION OF WITNESSES 665 unless the memorandum was made by himself.'^" It has been held, however, that where the wit- ness has verified a document made by another the same rule applies as wh^re he made the document himself.''^ § 40. Right of opposing counsel to inspect memorandum. — Where a memorandum is read by a witness with the view of refreshing his memory opposing counsel have the right to in- spect it. Moreover, they have the right to cross- examine the witness on it. "It is always usual and vtery reasonable, when a witness speaks from memorandums, that the counsel should have an opportunity of looking at those memo- randuims when he i? cross-examining that wit- ness. "^^ And although the memorandum itself is not admissible in evidence, it is proper for the jury also to inspect it for the purpose of determ- ining whether or not it could properly refresh the memory of the witness. "The opposite party is entitled to cross-examine, the witness in regard to it; and it may be shown to the jury, not for the purpose of establishing the facts therein con- 70. Eberson v. Con. Inv. Co., 130 Mo. App. 296, 109 S. W. R. 62; Steele v. Wdsner, 141 Pa. St. 63, 21 Atl. R. 527; Vichos V. Cuttler, 133 N. Y. App. Div. 230, 17 N. Y.' Suppl. 366; Wagar Lumber Co. v. Sullivan Logging Co., 120 Okla. SS8, 24 So. R. 949; Waitson v. Miller, 82 Tex. 279, 17 S. W. 10S3. 71. Bowden v. Spellman, SO Ark. 2S1, 27 S. W. R. 602; Lenney v. Finley, 118 Ga. 427, 45 S. E. R. 317; Brown V. Smith, 24 S. D. 231, 123 N- W. R. 689. 72. Hardv's Trial, 24 How. St. Tr. 824. 666 > THE LAW OF EVIDENCE tained, but for the purpose of showing that it could not properly refresh the memory of the witness."''" Where the memorandum does not refresh the memory of the witness, but, by reason of his previous connection with the paper, convinces him that the statements therein contained are true, and he testifies to them, the opposing coun- sel is entitled to inspect the memorandum and cross-examine the witness on it. As saidiby Dr. Greenleaf, "Where the witness recollects having seen the writing before, and though he has now no independent recollection -of the facts men- tioned in it, yet he remembers- that at the time he saw it he knew the contents to be correct . . . the writing itself must be produced in court in order that the other party may cross-examine," etc.^* § 41. When, the memorandum itself is admis- sible. — Where the memorandum is (ised by the witness merely t6 refresh his memory it is not admissible.''^ On the other hand, where it fails to do this, but convinces the witness, owing to his previous connecti6n with it, of its verity, and he testifies to this, the memorandum itself is ad- missible.'^® 73. Com. V. Jeffs, 132 Mass. S. , 74. 1 Greetil. Ev., § 436. 75. Com. V. Jeffs, supra; New England Mortg. Secur. Co. v. Anderson, 120 Ga. 1010, 48 S. E. R. 396. 76. Sherlock v. German-Awier. Ins: Co., 162 N. Y. 6S6, 57 N. E. R. 1124; Manchester Assur. Co. v, Ore. Ry. Co., 46 EXAMINATION OF WITNESSES 667 It has been held that w^ere the witness, after inspecting the memorandum, is able to testify to the contents from present recollection the mem- orandum is not admissible as evidence of a past recollection.'^^ This view obtains in the federal courts.^* Some courts hold that the writing is jaiadmissible unless it enables the witness to tes- tify to an independent recollection.''® But by the weight of authority the writing is admissible if the witness testifies that he made it at the time the transaction recorded took place and that he would not have made it had it not been true.^". § 42. Necessity of refreshing memory. — Be- 'fore a witness may refresh his memory by read- ing a memorandum, it must be shown that the necessity exists for him to do so.^^ Moreover, >the authenticity and correctness of the memo- Oreg. 162, 79 Pac. R. 60, 114 Am. St. Rep. 863, (i9 L. R. A. 47S; Com. v. Edgerton, 200 Mass. 318, 86 N. E. R. 768; Graham v. Dillon, 144 la. 82, 121 N. W. R. 47; Goodwin v. Union Ins. Co., 163 Mich. 41, 127 N. W. R. 790. n. People V. McLaughlin; 150 N. Y. 36S, 44 N. E. R. 1017; ■ Weaver v. Bromley, 65 Mich. 214, 31 N. W. R. 839. 78. Vicksbung Ry. Co. v. O'Brien, 119 U. S. 99. 79. McNeely v. Duff, 50 Kan. 488, 31 Pac. R. 1061 ;^ Eastman V. State, 48 Fk.,21, 37 So. R. 576; Richmond V. Atkin- son,' 58 Micli. 413, 25 N. W. R. 328. 80. ^lolden v. Prudential Ins. Co. of Amer., 191 Mass. .153, n N. E. R. 309 ; St. Paul Boom Co. v. Kemp, 125 Wis. 138, 103 N. W. R. 259; Martin v. Good, 14 Md, 398, 74 Am. Dec. 54S-; Grahaim V. Dillon, supra. 81. State V. Burns, 25 S. D. 364, 126 N. W. R. 572. * 668 THE LAW OF EVIDENCE "randum must also be shown.*^ Where the writ- ing was made by the witness he may be com- pelled to refresh his memory by inspecting it.*^ The memorandum may be any writing or printing which would tend to refresh the memory of the witness. It may have been made by the witness himself,^* or by another.**" It may consist of a telegram;^® a diary ;^^ a bank deposit slip;^^ a bill of sale;*" an account bookvj^" a plat of land;®^ a list of articles;"^ a letter;*** an affidavit;®* a 82. Jagnes v. Horton, 76 Ala. 238. 83. Stevens v. Worcester, 106 Mass.i4S, 81 N. E. R. 907. 84. Bush V. Stanley, 122 111. 406, 13 N. E. R. 249 ; Heenan v. Forest City Paint, etc., do., 138 Mick 548, 101 N. W. R. 806; Manchester Assur. Co. v. Oregon Ry. Co., supra. 85. Card v. Foot, 56 Conn. 369, 15 Atl. R. 371, 7 Am. St. Rep. 311; Manchester Assur. Co. v. Oregon Ry. Co., supra; Kipp V. Silverman, 25 Mont. 294, 64 Pac. R. 884. 86. Com. V. Burton, 183 Mass. 461, ^7 N. E. R. 419. 87. Star Mills v. Bailey, 140 Ky. 194, 130 S. W. R. 1017, 140 Am. St. Rep. 370. 88. State v. 'Stevens, 16 S. D. 309, 92 N. W. R. 420. 89. McFadden v. State, 28 Tex. App. 241, 14 S. W. R. 128. 90. O. S. Richardson Fueling Co. v. Seymour, 235 111. 319, 85 N.'E. R. 496; People v. Vann, 129 Cal. 118, 61 Pac. R. 776. 51. Mitchell V. Churchman, 4 Humph. (Tenn.) 218. 92. Ward v. D. A. M'orr Trans,, etc., Co., 119 Mo. App. 83, 95 S. W. R. 964 ; Wells .Whip Co. v. Tanners' Mut. F. Ins. Co., 209 Pa. St. 488, 58 Atl. R. 894. 93. Baker v. Sherman, 71 Vt. 439, 46 Atl. R. 57; Rutherford V. Mob. Br. Bank, 14 Ala. 92 (answer). 94. Wise V. Loring, 59 Mo. App. 269. EXAMINATION OF WITNESSES 669 railroad ticket f^ a book of entries from memo- randum slips;®® a memorandum of the terms of a contract;®^ a cipher memorandum;"^ leaves from the family Bible ;°® official census re- turns/"" -etc. § 43. Impropriety of counsel assuming facts. — Facts which are pertinent to the issue are mat- ters for the jury to find. Hence, ordinarily, it is irnproper for counes'l, in questioning a witness, to assume a fact which has not been proved or admitted.^ "The rules of law which govern in the examination of witnesses as effectually pro- hibit counsel from assumihg in their questions any facts which are material to the point of the inquiry, but which are to be ultimately found by the jury, as other rules of law forbid the judge from assuming such facts in his instructions to the jury. In the former case, the reason of such rules does not rest merely upon the considera- tion that such assumption of facts might mislead ttie witness, but upon that of the liability of such 95. Howard ,v. Chesapeake, etc., Ry. Co., 11 App. Cas. (D.C.) 300. 96f Tabor State Bank v. Brewer, 100 la. 576, 69 N. W. R. 1011. 97. Neil V. Childs, 32 N. C. 195. 98. State v. .Cardoza, 11 S. C. '195. 99. Curtis v. State, 89 Ark. 394, 117 S. W. R. 521 (as to the age of the prosecutrix). ^ 100. United iStates v. Tenney, 2 Ariz. 29, 8 Pac. R. 295. ,1. Andrews v. State, 159 Ala. 14, 48 So. R. 858; Hanson v. Neal, 215 Mo. 256, 114 S. W. R. 1073; Price v. Rosen- berg, 200 Mass. 36, 85 N. E! R'. 887; State v. Flanigan, 111 Md. 481, 74 Atl. R. 818. 670 TH£ LAW OF EVIDENCE assumption or assertion of facts by counsel 1 coming a substitute in the minds of jurors evidence, and tlius calculated to mislead them To the general rule stated above there are, he ever, some exceptions.. Thus, counsel may sume a fact concerning which there is no C( troversy or dispute f or a fact which is a m( incident of the main fact.* Moreover, the qu tion of allowing counsel to assume as true fa not proved or admitted js a matter which re largely in the discretion of the trial court.^ § 44. Anticipating the defence. — The plain may, in the first instance, introduce evidei with the view of anticipating the defence. Wh( he pursues this course, he is precluded from si sequently 'replying to the defendant's evidei upon this phase of the case without the pern; sion of the court.® "As a general rule in the c( duct of, trials, if a party elects to proceed in \ first instance with proof to anticipate the 1 fehce, he should not afterwards be allowed offer evidence on the' same point, in reply to 1 case made by the testimony of the defenda To permit a party thus to divide his case leads confusion, and gives him an unfair advahtE over his adversary."^ 2. Harsh v. Mm day,' 12 Br-adw. (111.) 539.' •3. New York Mut. L. Ins. Co. v. Allett, 212 111. 134, 72 E. R. 200. . 4. Gilliland v. Dunn, 136 Ala. 327, 34 So. R. 25. 5. State v.,Empting, (N. D.) 128 N. W. R. 1119. 6. Holbrook v. McBride, 70 Mass. 215. 7'. York V. Pease, 68 Mass. 282. EXAMINATION OF WITNESSES 67 1 I § 45. The cross-examination. — In general. — When the direct examination of a witness is con- cluded he is turne4 over to the opposing counsel for cross-examination. The object of this ex- amination is to elucidate the truth as to the facts testified to in the direct examination, and to weaken or disprove the direct testimony. Where the direct testimony of a witness is very weak, or incomplete and unsatisfactory, ordinarily it is better to forgo cross-examining him. A cross- examination in such case would naturally tend to strengthen his testimony, and it would also afford the party who called him an opportunity for re-examination. § 46. Scope of the cross-examination. — As, to the scope of the cross-examination there is a marked, distinction between the English rule and the American rule. According to the English rule the cross-examination may extend to any matter legally relevant to the case.* But ac- cording to the American rule' it is limited to mat- ters brought out in the direct examination.® This 8. Mayor, etc., v. Miirray, 19 L. J. (Oh.) 281; Seph. Dig. Evid., art. 127. 1 9. Etnerson v. Fleming, 246 111. 3S3, 92 N. E. R. 890 ; Reeves V. Brawn, 80 Kan. 292, 102 Pac. R. 840; Blumquist v. Snare, etc., Co., 200 N. Y. S9S, 94 N. E. R. 1092 ; Com. v. Fencez, 226 Pa. St. 114, 75 Atl. R. 19; Kirby v. State, ISl Ala. 66, 44 So. R. 38; Jenkins v. State, 58 Fla. 62, 50 So. R. 582; Collins v. Wells, 140 la. 304, 118 N. W. R. 401; . Drajle. V. Reeds'burg, 140 Wis. 319, 122 N. W. R. 771; State V. Byrd, 41 Mont. 585, 111 Pac. R 407; State v. Gosey, 111 La. 616, 35 So. R. 786; Woods v. Faurot, 14 Okla. 394, 108 Pac. 1005. 672 . THE LAW OF EVIDENCTE rule obtains in the federal courts.^" The English rule, however, has been followed in the following states : Arizona,^^ Arkansas,^^ Georgia,^* Ken- tucky,^* Maine,^^ Massachusetts,^® Michigan,^'' Mississippi,^^ Missouri,^^ North Carolina,^" South Carolina,^^ Tennessee^^ and Virginia.^* § 47. Same. The American rule correct upon principle. — The reason why the American rule is correct upon principle is tersely stated by Wal- ker, C. J., as follows : "It seems to be the well recognized rule that when a witness is called by one party the other has only the right to cross- examine upon facts to which he testified in chief. If he can give evidence beneficial to the other party he should call him. at the proper time, and make him his own witness and examine him in chief, thereby giving the other party the benefit of a cross-examination on such evidence in chief. 10. Wills V. Russell, 100 U. S. 621, 23 L. ed. 607 ; Sauntry v. United States, 117 Fed. R. 132, SS C. C. A. 80. 11. Rush V. French, 1 Ariz. 99, 25 Pac. R. 816. 12. Bispbam v. Turner, 83 Ark. 331, 103 S. W. R. 1135. 13. Ficken v. Atlanta, 114 Ga. 970, 41 S. E. R. SB. 14. Bruton v. Eddington Griffiths Constr. Co., (Ky.) 118 S. W. R. 1001. 15. Falmouth v. Windham, 63 Me. 44. ' 16. O'Connell v. Dow, 182 Mass. 541, 66 N..E. R. 788. 17. Cairbre v. McQuillem, 162 Mich. 679, 127 N. W. R. 750. 18. Walton v. State, 87 iMiss. 296, 39 So. R. 689. 19. State V. Martin, 229 Mo. 620, 129 S. W. R. 881. 20. Smith V. Atl., etc., Ry. Co., 147 N. C. 603, 61 S. E. R. 575.- 21. Brown v. Foster, 41 S. C. 118, 19 S. E. R. 299. 22. Sands v. So. Ry. Co., 108 Teim. 1, 64 S. W. R. 478. 23. Richards v. Com., 107 Va. 881, 59 S. E. R. 1104. EXAMINATION OF WITNESSES 673 Otherwise the party calling the witness would be deprived of a cross-examination as to evi- dence called out by the other side, and the party against whom the witness was first called would obtain the advantage of getting evidence under the latitude allowed in a cross-examination."^* In speaking of the American rule, Craig, J., says, "When a witness is called to prove a single fact, the opposite party, under the guise of a cross-examination, can not enter upon a general examiriation of the witness, but the xross-exam- ination must be confined to the examination in chief. This rule, we apprehend, is well estab- lished by the authorities."^^ While the Ameri- can rule is undoubtedly supported by the great weight of American authority, and is correct upon principle, yet the courts of some thirteen states, as indicated above, have followed the English rule. § 48. The American rule liberally construed. — The American rule, which confines the cross- examination to matters brought out in the direct examination, is usually given a liberal interpre- tation. It allows questions concerning inferences and conclusions which grow out of the direct 24. Stafford v. Fargo, 35 111. 481, 486. 25. State V. Rumfelt, 228 Mo. 443, 128 S. W. R. 737; Amer. Car, etc., Co. v. Alex. Water Co., 218 Pa. St. S42, 67 Atl. R. 861 ; 111. Cent. Ry. Co. v. Prickett, 210 111. 140, 71 N. E. R. 435 ; Welch v. Spies, 103 la. 389, 72 N. W. R. 548 ; Grill V. O'Dell, 113 Md. 625, 11 Atl. R. 984; Eames v. Kaiser, 142 U. S. 488. 674 THE LAW OF EVIDENCE examination. Moreover, questions which do i ehcit new subjects, but merely tend to elicit ; swers which explain, modify, rebut or contrad matter brought out in the direct examinatii are not objectionable,^® § 49. Scope of the rule where the credibility the witness is involved. — Where the cross-i amination concerns the accuracy, veracity credibility of the witness great latitude is lowed.^''^ Especially where the questions call- answers which concern facts material to the sue.^® The mere fact that the questions call answers which tend to disgrace the witness d( not render them objectionable.^® But where 1 answers would tend to criminate the witness may, of course, refuse to answer them. An 1 ception to this rule is where the accused tal the stand. In such case he is bound to ansv all questions which are relevant to his direct < amination. "He cannot claim the advantage the position of a witness, and at the sameti avoid its duties and responsibilities."^" 26. Chicago City Ry. v. Creech, 207 111. 400, 69 N. E. R. S State V. Miller, 190 Mo. 449, 89 S. W. R. 377; Peopl Manasse, 153 Cal. 10, 94 Pac. R. 92. 27. Real v. People, 42 N. Y. 2/'0, 280; Goonbow v. Pec 160 111. 438; Howser v. Com., 51 Pa. St. 332; Stati O'Brien, 81 la. 93 ; Neal v. Neal, 58 Cal. 287. 28. Com. V. Nichols, 114 Ma.ss. 285, 19 Am. Rep. 346 (for acts of adultery) ; Smith v. Yaryan, 69 Ind. 445, 35 . Rep. 346 (bastardy case; intercourse with other man 29. Real v. People, supra. 30. Brandon v. People, 42 N. Y. 265. See also. Com EXAMINATION OF WITNESSES 675 § 50. Same. Application of the rule to collat- eral and irrelevant matters. — Where the object is to impeach the credibility of the witness, may- he be required to answer questions whose ans- wers would tend to degrade or disgrace him, but not to criminate him, and which are collateral and irrelevant to the issue? Upon this question the decisions are not harmonious. Mr. Stephen says, "When a witness is cross-examined, lie may, in addition to the questions hereinbefore referred to, be asked any questions which tend (i) to test his accuracy, veracity or credibility, or (2) to shake his credit by injurying his char- acter. Witnesses have been compelled to answer such questions, t^hough the matter suggested was irrelevant to the matter in issue, and though the answer was disgraceful to the witness ; but it is submitted that the court has a right to ex- ercise a discretion in such cases, and to refuse to compel such questions to be answered when the truth of the matter suggested would not, in the opinion of the court, afifect the credibility of the witness as to the matter to which he is required to testify."" Many courts have held that the cross-examin- ation should not be extended to collateral and Nichols, supra; People v. Tioe, 131 N. Y. 651, 30 N. E. R- 494; People v. Duponee, 133 Mich. 1, 94 N. W. R. 388; Spies V. People, 122 111. 1, 12 N. E. R. '865, 17 N. E. R. 898, 3 Am. St. R. 320; Com. v. Smith, 163 Mass. 411, 40 N. E. R. 189. 31. Steph. Dig. Evid., art. 129. 676 the; law of EVIDEISrCE irrelevant matters.®^ On the other hand, other courts have taken a more liberal view.^^ This view is based chiefly on the ground that the cross-examination constitutes the strongest test of truth ; and in the interest of justice the feelings of the witness, which are matters of secondary importance, should give way. It has been held prejudicial error for the trial court to compel the accused, who was on trial for murder, and who had testified on his own be- half, to state, in his crOss-examination, whether or not he had visited saloons, drank and played cards.** It also has been held that the fact that the witness is a deserter from the army,*^ or that he is an atheist,*^ has no bearing on the question of his credibility. 32. Larabee v. Laraibee, 240 111. 576, 88 N. E. R. 1037; State V. Blackburn, 136 la. 743, 114 N. W. R. 531; State v. Gereke, 74 Kan. 196, 86 Pac. 160, 87 Pac. 759; Tinikle v. Wallace, 167 Ind. 382; Doughlass v. State, S3 Fla. 27, 43 So. 424; Jennings v. Rooney, 183 Mass. 577, tl N. E. R. 665 ; Metro. St. Ry. Co. v. Walsh, 197 Mo. 392, 94 S. W. R. 860; People v. Van Tassel, 156 N. Y. 651, 51 N. E. R. 274. 33. State v. Abbott, 65 Kan. 139, 69 Pac. R. 160 (illicit acts) ; Goon Bow V. People, 160 111. 438, 43 N. E. R. 593 (keep- ing opium joint) ; Louisville & N. Ry. Co. v. Bizzell, 131 Ala. 429, 30 So. R. Ill (drunkenness) ; People v. Giblin, 115 N. Y; 196, 21 N. E. R. 1062 (counterfeiting) ;- State V. Wells, 54 Kan. 161, 37 Pac. R. 1005 (acts of violence). 34. Hayward v." People, 96 111. 492, 502. 35. Gulf, C. & S. F. Ry. Co. v. Johnisoni 83 Tex. 628, 19 S. W. R. 151. 36. People v. Copsey, 71 Cal. 548, 12 Pac. R. 721. EXAMINATION OF WITNESSES 677 It is proper for the trial court of its own mo- tion to exclude questions on the cross-examina- tion which r-elate merely to irrelevant matters.^''' § 51. Rule where question relates to previous statements. — Where counsel, in cross-examining- a witness, asks him to state whether or not he made a prior statement as to the matter testified to by him on his direct examination, and he an- swers in the affirmative, counsel for the party who called him may, at this point, ask the wit- ness to state whether or not the~ prior statement wag verbal or in writing. And if he says it was in writing, the writing itself must be produced, or its non-production satisfactorily accounted for, before 'the witness may give secondary evi- dence of its contents.^* § 52. Questions which concern collateral spe- cific misconduct of the witness. — Upon this point the decisions are not harmonious. The extent to which this class of questions is allowable on cross-examination is a matter which rests largely in the discretion of the trial court. Much may depend upon the circumstances of the particular case. Where they are such as to render the ques- tions unjust and uncalled for they should be ex- 37. Wells V. Mi'ssouri-Edison Electric Co., 108 Mo. App. 607, 84 S. W. R. 204. 38. Lange v. Schoettler, 115 Cal. 388; Cafney v. People, SO N. Y. 416; State v. Lowry, 42 W. Va. 205; Putaam v. United States, 162 U. S. 687. 39. Com. V. Foster, 182 Mass. 276, 65 N. E. R. 391 ; Steen v.. Santa Clara v. M. & L. Co., 134 Cal. 355, 66 Pac. 321 ■, 6/8 THE LAW OF EVIDENCE eluded. ^^ Questions involving specific acts of unchastity on the part of the witness;*" or spe- cific acts of violence;*^ gambling;*^ fraud ;*^ il- legality," etc., have been held improper. It also has been held that a witness should not be asked, on his cross-examination whether or not he has been expelled from church ;*^ or disbarred from practicing law ;*® or discharged from the army.*'^ On the other hand similar questions have been allowed.** Where a party to the action takes the stand in his own behalf considerable latitude is allowed on the cross-examination. Thus, he may be asked Tiow many times he has been arrested;*^ whether Crawford v. State, 112 Ala. 1, 21 So. R. 214; State v. Haab, lOS La. 230, 29 So. R. 725 ; People v. Gotshall, 123 Mich. 474, 82 N. W. R. 274. 40. Peopk V. Tiley, 84 Cal. 651, 24 tac. R. 290. 41. State V. Carson, 66 Me. 116; Buel v. State, 104 Wis. 132, 80 N. W. R. 78. 42. People v. Un Dong, 106 Cal. 88, 39 Pac. R. 12. 43. Com. V. Mason, 105 Mass. 163, 7 Am. Rep. 507. 44. Com. V. M,cDonald, 110 Mass. 405. 45. People V. Dorthy, 156 N. Y. 237, 50 N. E. R. 80(3. 46. Smith v. Castles, 1 Gray (Mass.) 108. 47. State V. Spotted Hawk, 22 Mont. 339, 55 Pac. R. 1026. 48."State v. Abbott; 65 Kan. 139, 69 Pac. R. 160 (illicit acts) ; State V. Welli, 54 Kan. 161, 37 Pac. R. 1005 (acts of vio- lence) ; City of South Bend v. Hardy, 98 Ind. 577 fraud) ; Goon Bow v. People, 160 III. 438, 43 N. E. R. 593 (illegal acts) ; Peopk v. Webster, 139 N. Y. 73, 34 N. E. R. 730 (illicit acts) ; People v. MoConmidc, 135 N. Y. 663, 32 N. E. R. 26 (aicts of violence). 49. Hill V. State, 42 Neb. 503; Conners v. People, 50 N. Y 240. EXAMINATION OF WITNESSES 679 or not he has been in jail or penitentiary;^" how often he has been in jail;^'^ how much time he has spent in jail;^^ whether or not he has ever been arrested before for stealing,®* etc. Ordi- narily, however, collateral, irrelevant or imma- terial questions should be excluded.®* As regards the meaning of the term "collat- eral," as used in this connection, it has been held, that any matter which the cross-examining party is not entitled to go into in chief is collateral. § 53- Collateral matter brought out in direct examination. — Where improper , testimony is given by the witness in his direct examination, and it is not stricken out, opposing counsel has the right to cross-examine him on it.®® But where such testimony has been ruled out, any question on cross-examination which calls for an 50. Real v. People, 42 N. Y. 270. 51. State V. Martin, 124 Mo. 514; Leland v. Kauth, 47 Mich. 508. 52. Lights V. State, 21 Tex. App. 308. 53. Brandon v. People, 42 N. Y. 265. 54. Palmer v. Matthews, 162 N. Y. lOO, 56 N. E. R. 501; Beans v. Denny, 141 la. 52, 117 N. W. R. 1091 ; Norton v. Griffin, 160 Mass. 236, 35 N. E. R. 462; Curren v. Am- persee, 96 Mich. 553, 56 N. W. R. 87 ; Just v. Idaho Canal, etc., Co., 16 Ida. 639, 102 Pac. R. 381, 133 Am. St. Rep. 140; Bell v. Jamison v. 102 Mo. 71, 14 S. W. R. 714. " 55. Dotterer v. State, 172 Ind. 357, 88 N. E. R. 689, 30 L. R. A. N. S. 846. 56. People V. Barry, 196 N. Y. 507, 89 N. E. R. 1107; Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138, 33 S. E. R. 945. 68o THE LAW OF EVIDENCE answer that would bring out the collateral testi- mony should be excluded." § 54. Voluntary statements in direct examina- tion.— Where a witness makes voluntary state- ments in his direct examination, not called far at all by counsel, and they are not ruled out, has the opposing counsel the right to cross-examine him on the subject-matter of this testimony? Upon this point the decisions are conflicting. Some courts have answered it in the affirma- tive,''^ and some in the negative.^® § 55. Rule where a witness is called to the stand by the court. — The trial judge may call a witness to the stand of his own motion, and ex- amine him. In such case neither party to the suit has the right to cross-examine him.®^ The court may, however, in its discretion, allow the witness to be cross-examined by either or both parties. But a general fishing cross-examination ought not to be permitted. Where the trial judge examines a witness he may ask him leading questions. And leading questions are always allowable in the cross-ex- amination. § 56. Right to. cross-examine where prelim- inary examinations are made . by the court. — 57. Spear v. Richardson, 37 N. H. 23. 58; State v. Adams, 108 Mo. 208, 18 S. W. R. 1000; Apple v. Marion County, 127 Ind. 553, 27 N. E. R. 166. 59. People V. French, 95 Cal. 371, 30 Pac. R. 567; Brus"beTg- V. Milwaukee, etc., Ry. Co., 55 Wis. 106, 12 N. W. R. 416; Kilgore v. State, 124 Ala. 24, 27 So. R. 4. EXAMINATION OF; WITNESSES 68l Ordinarily; where preliminary examinatiohs are' made by the court to determine the competency of witnesses, the admissibility of testimony, etc., counsel do not have the right to cross-examine.®" The testimony in such cases is iaddress'eci ta the court and not to 'the jury'.' But where secondary evidence is sought to be introduced to prove the contents of a writing which is alleged to be lost, and witnesses testify to the loss of the instru- fnent, opposing counsel have the right to cross- examine them. Their testimony in such case is addressed to the judge, in order that he may de- cide the question of admissibility of the secon- dary evidence; but this fact does not deprive op- posing. couiasel of the right to cross-examine the witness. "The afifidavit of a party, on the ques- tion of. loss of papery may be admitted to. exclude any J)resumption that he may have it injhis pos- session ; but those who may be admitted: as wit- nesses must, testify in the; usual form in order 'that the advantage of cross-exammation may be preserved."®^ § 57. Answers of a witness which may not be contradicted. — Answers given jpy a witness in his cross-examination which arei material to the issue may be contradicted; but those which are collateral to the issue may not be contradicted.*^ It has been held that matters of veracity and 60. Coni. V. Morrell, 99 Mass., 542. ■.,;■, 61. Poignard v. Smith, 8 Pick. (Mass.) 272. S^e -also, Becker v. Quigg, 54 111. 390, 395. . „■■- ' :•,) 62. Brittai'n v. State; ^6 Tex. Cr. R.- 406,, 37 S. W. R. ,758., ■ 682 th£ law of evidence bias of a witness are not collateral to the issue.** U^on this point, however, the authorities are not harmonious. § 58. Rule where opposing counsel are de- prived of opportunity to cross-examine. — Where opposing counsel is deprived of an opportunity to cross-examine a witness who has given direct testimony, thru no fault on his part, as where thfe witness becomes suddenly ill, or dies before an opportunity is afiforded for cross-examina- tion, the direct testimony must be stricken out.** Instances of this kind, however, are compara- tively rare. § 59. Self-contradiction on cross-examination. — It is allowable on cross-examination to ask a witness whether or not he rnade prior statements contradictory to his present testimony. This question may have a double purpose. One to impeach his credibility at once, in case he admits that he made prior inconsistent statements, or because confused, or manifests uncertainty in regard to the matter. The other to lay a founda- tion for introducing direct testimony that the witness did make prior inconsistent statements, in case that he denies that he did.*^ In the latter case if the statements are not material to the issue the cross-examiner is bound by the an- 63. Combs V. Winchester, 39 N. H. 13, 19; Day v. Stickney, 14 Allen (Mass.) 2SS. 64. People v. Cole, 43 N. Y. 508. 65. Welch V. Abbott, 72 Wis. 512, 40 N. W. R. 223. EXAMINATION OF WITNESSES 683 swer."® In formulating his question, it is in- cumbent on the cross-examiner to identify with reasonable clearness the time and the" place of the alleged inconsistent statements.®^ Where the alleged inconsistent statemtets are in writing, and the witness admits that he made it, the writing is admissible in evidence.®* It is not essential, however, to produce the writing.*® § 60. Rule where witness is sworn but does not testify.- — Upon this question the authorities do not agree. Mr. Stephen says that, whenever a witness has' been intentionally sworn the op-' posite party has the right to examine him.'^" And it is said that it is "no reason for rejecting or striking out the cross-examination of a witness that he has not given any testimony in chief, or that his testimony in chief has been stricken out."'^^ Qn the other hand, it has been held that merely calling a witness and swearing' him does not entitle the adverse party to cross-examine 66. Alexander v. -Kaiser, 149 Mass. 321, 21 N. E. R. 376; Com. V. Ho-urigan, 89 Ky. 305, 3ll, 12 S. W. R. 550; - St^te V. Crouse, 86 N. C. 617; Carpenter v. Ward, 30 N. Y. 243. Q. Campbell v. Campbell, 138 111. 612, 615, 28 N. E. R. 1080; teople V. Devine, 44 Cal. '452 ; Mattox v. United States, 156 U. S. 237, 245, IS Sup. Ct. 337. 68. Gaffney v. People, SO N. Y. 416, 423. 69. Town of Randolph v. Town of Woodstock, 35 Vt. 291, 29S. 70. Step.h. Dig. Evid., a,rt. 126. 71. Turnbull v. Richardson, 69 Mich. 400, 416, 37 N. W. R. 499, 507. 684 THE LAW OF EVIDENCE him.''^ Upon principle, the latter view seems correct. It is common practice to swear all the witnesses' which one party intends to call. After the witnesses are sworn, he may decide not to call one or more of them; and it seenis absurd that the a.dv^rse party, under these circum- stances, would have the right to cross-examine witnesses who have given no direct testimony. § 6i. Importance of cross-examination. Its dangers. — The right of cross-examination is an exceedingly important one. It afifords the most efficacious test for the discovery of truth that has ever been applied. The right to be con- fronted with the witness, and to sift the truth out of the mingled mass of ignorance, prejudice, passion, and interest, in which it is very often hid,, is among the very strongest bulwarks of jus- tice.'^^ As said by Dean Wigmore, "It is beyond any doubt the greatest legal engine ever in- vented for the discovery of truth."''* And as said -by Dr. Greenleaf, "The power of cross-ex- amination has been justly said to be one of the, principal, as it certainly is one of the most effi- cacious tests, which the law has devised for the discovery of truth. ... It is not easy for a wit- ness, who is subjected to this test, to impose on a court or jury; for however artful the fabrica- tion of falsehood may be, it cannot embrace all 72. Austin v. State, 14 Ark. SSS, 563; Toole v. Nichol, 43 Ala. 406. 73. McCIoskey v. Leadbetter, 1 Ga. 551, SSS. 74. Wigmore on Evid., Vol. IT.,^ § 1367. EXAMINATION OF WITNESSES 685 the circumstances to which a cross-examination may be extended. "^^ It is well to observe, however, that the, legal engine of cross-examination is as dangerous as it is powerful. In the hands of a skillful advo- cate it is a most powerful weapon, but in the hands of ah unskillful advocate it is a very dan^ gerous one. When the principles upon which it is based are not understood and acted upon it is most likely to react adversely against the party ,who uses it."^® § 62. Leading questions allowable. — While -leading questions are not usually allowable on the direct examination they are usually per- mitted on the cross-examination.'''^ It has been held, however, that the trial court may refuse to allow leading questions even on the cross-exam- ination.''* § 63. Impertinent questions improper. — In- sulting or impertinent questions should be ex- cluded even on the cross-examination.''® But 75. 1 Greenleaf on Evid., § 446. 76. Borrett v. Pety, 148 111. App. 622. 77. People V. Considine, 105 Mich. 149, 63 N. W. R. 196; Hempton v. State, 111 Wis. 127, 86 N. W. R. 596; State V Boice, 114 La. 856, 38 So. R. 584; State v. Hanlon, 38 * Mont. 557, 100 Pac. R. 1035. 78. Gordon v. State, 140 Ala. 29, 36 So. R. 1009. 79. Libby v. Cook, 222 lit. 206, 78 N. E. R. 599 ; People v. Durrant, 116 Cal. 179, 48 Pac. R. 75. 686 THE LAW OF EVIDENCE questions are not improper merely because the answers tend to disgrace the witness.*" § 64. Questions which call for new matter ob- jectionable. — Questions which call for new ihat- ter are improper and should be excluded. ^^ § 65. Assuming facts not in issue objection- able. — While it has been held allowable to ex- tend the cross-examination to facts not in issue where the object in doing so is to test the recol- lection of the witness,*^ ordinarily it is objec- tionable for counsel, even on the cross-examina-' tion, to assume facts not in evidence.** § 66. Argumentative questions improper. — While considerable latitude is allowed counsel on the cross-examination, argumentative ques- tions are objectionable and should be excluded.** § 67. Repeating questions, or testimony, objec- tionable. — As a general rule, it is improper for counsel to repeat questions either in the same form or in a different form.*^ And it is also im-_ 80. Goonibow v. People, 160 111. 438;, Com. v. , Curtis, 97 Mass. 574. , 81. Hawks V. Rhoads, 128 111. 404; Lawdfcr v. Henderson, 36 Kan. 754. 82. State v. Ellwood, 17 R. I. 763 ; State v. Duffy, 57 Conn. 525. 83. Com. y. Nelson, 180 Mass. 83, 61 N. E.R. 802; Moore v. ' State, 40 Tex. Cr. R. 439, 50 S. W. R. 942 ; State v. Wil- liams, 111 La. 20s, 35 So. R. 521. 84. People y. Harlan, .133 Cal. 16, 65 Pac. R. 9. 85. Quinicy Gas, etc., Co. v. Baiiman., 203 111. 295, 67 ^f! E. R. 807 ; Murphy v.- Hoagland, 107 S. W. R. 303, 32 Ky. L. EXAMINATION OF WITNESSES 687 proper, as a general rule, for the witness to re- peat testimony already given by him.^* This is a matter, however, that rests in the discretion of the court." Where the object is to test the recollection and accuracy^ of the witness, repeti- tion has been allowed.^* § 68. Proving conviction of crime. — By stat- ute, in practically all, of the states, the fact that a witness has been convicted of a crime may be brought out on the cross-examination.*^ At the .common law, however, the best evidence of this fa,ct is the record itself; and in the absence of a statute the record must be produced.®" § 69. Proving arrest and indictment. — As to whether or not it is proper to ask a witness on his cross-examination whether he has ever been arrested or indicted, the decisions are conflict- ing. Upon principle the question is improper and should be excluded. The mere fact of ar- rest or indictment of a witness is not proof of any misconduct on his part. Some courts, however, / • Rep. 839; People v. Considine, lOS Mich. 149, 63- N. W. R. 196; McBride v. McBride, 142 la. 169, 120 N. W. R. 709. 86. State v. Lee, 228 Mo. .480, 128 S. W. R. 987;. Short v. East, St. Louis, 140 III. App. 173. 87. Garland v-. State, 112Md. 83, 75 Atl. R. 631; McBride v. McBride, supra. ■88. Beers v. Pdymeot, 9S.Mioh. 261, 54, N. W. R. 886. 89. Spiegel v. Hayes, 118 N. Y. 660, 22 N. E. R. 1105. 90. Paulson v. State, 118 Wis: 89, 94 N. W. R. 771; Huff v. State, 104 Ga. 384, 30 S. E. R. 808. 688 THE LAW OF EVIDENCE hold that the question is proper.®^ It is prob- able, however, that this view is against the weight of authority.®^ , § 70. Proving that witness has been imprison- ed.^There is also conflict in the decisions as to the propriety of asking a witness, on cross-ex- amination, whether or not he has served time in jail or penitentiary. Some courts hold that in the interest of justice the witness should be re- quired to answer the question. ^^ Other courts, however, hold the contrary.®* Some hold that proof of imprisonment is sufificient to infe;r a con- viction.*® ' § 71. When answer is conclusive. — ^When a witness is asked a question on cross-examina- tion, the answer to M^hich is irrelevant to the issue, the witness may not be contradicted. Thus, where a witness is asked whether or not he has ever been arrested or served time in the peni- tentiary, and he answers in the negative, testi'- mony is inadmissible to contradict him.®® 91. People V. Foote, 93 Midi. 38, 52 N. W. R. 1036; State v. Greenberg, 59 Kan. 404, 53 Pac. R. 61 ; Kach v. State, 126 Wis.' 470, 106 N. W. R. 531, 3 L. R. A. (N. S.) 1086; Parker v. State, 136 Ihd. 284, 35 N. E. R. 1105. 92. Roop V. State, 58 N. J. L. 479, 34 Atl. 749; People v. Silva, 121 Cal. 668, 54 Pac. R. 146; Van Bokkekin v. Berdell, 130 N. Y. 141, 29 N. E. R. 254. 93. fteal v. People, 42 N. Y. 265. 94. State v. Hogan, 115 la. 455, 88 N. W. R. 1074. 95. Buel V. State, 104 Wis. 132, 80 N. W. R. 78. 96. Brittain v. State, 36 Tex. Cr. R. 406, 3'7 S. W. R. 758; People V. Roeirfer, 114 Cal. 51; State v. McCann, 16 Wash. 249. EXAMINATION OF WITNESSES 689 § 72>. Extent of the cross-examination. — The mode and extent of the examination of witnesses rest in the sound discretion of'the court. And this is true not only "^s to the direct examination hut- also as to the cross-examination. The trial court, however," must not unduly restrict the cross-examination.®'^ On the other hand, where counsel purs-ues a course which is unfair to the witness, or which is improper for any other rea- son, the court may, gi its own motion,- restrict counsel within reasonable limits.®* § 73. Preliminary questions on cross-examina- tion. — It is customary -for counsel, onicross-ex- amination of a witness, to ask him questions pertaining to his relations with the party who called him ; and also as to his feelings toward the adverse party.®* These preliminary qikes- tions are proper, as they tend to bring out infor- mation concerning his bias or prejudice as to these parties. This class of questions, how^ ever, should be , restricted within reasonable limits. Thus, where the witness is asked on cross-examination to state his feelings towards the husband of the party on whose behalf he is 97. Kalk V. Fielding, SO Wis. 339; Reiser, v. Portere, 106 Mich. 102, 63 N. W. R. 1041; Patrick v. Crowe, IS Colo. S43. 98. People- v. Kindra, 102 Mich. 147 ; Hamilton v. Miller, 46 Kan. 486; Com. v. Lyden, 113 Mass. 452; Storm v. United States, 94 U. S, 76. 99. Gutterson v. Morse, S8 N. H. 165; Schultz v. Third Ave. Ry. Co., 89 N. Y. 242. 690 THE LAW OF EVIDENCE cross-examined the question should be ex- cluded."" V § 74. The redirect examination.— At the close of the cross-examination of a witness the party who called him may reinterrogate him> This re-examination, however, should be restricted to matters brought out ori the cross-examination.^ It extends, however, to all new matter brought out on the cross-examination.^ The witness may give reasons for,* and explain, statements made by him on the cross-examination. He may ex- plain statements made on his cross-examination although the explanatory testiinony would have been inadmissible on his direct examination." But new matter, not brought out on- his cross- examination, should be excluded.® 100. State V. Montgomery, 28 Mo. 594. 1. State V. Cochran, 147 Mo. 504, 49 S. W. R. 558; House- man V. Belle Plaine, 124 la. 510,-100 N. W. R. 343 ; Peo- ple V. McArron, 121 Mich. 1, 19 N. W. R. 944; Lury v. New York, etc., Ry. Co., 205 Mass. 540, 91 N. E. R. 1018. 2. Colquit V. State, 107 Tenn. 381, 64 S. W. R. 713 ; Cusick V. Whitcomb, 173 Mass. 330, S3 N. E. R. 815; Ballew v. United States, 160 U. S. 187, 16 S. Ct. 263, 40 L. ed.* 388. 3. State V. Williamis, 111 La. 179, 35 So. R. 505; Hamilton V. Milkr; 46 Kan. 486, 26 Pac. R. 1030; Com. v. Dill, 156 Mass. 226, 30 N. E. R. 1016 ; People v. Nobletty 184 N. Y. 612, 11 N. E. R. 1193; People v. Robinson, 135 Mich. 511, 98 N. W. R. 12; Nichols v. Nichols, 147.Mo. 387, 48 S. W. R. 947. 4. State V. Kaiser, 124 Mo. 651, 28 S. W. R. 182 -; People v. Pyckett, 99Mich. 613, 58 N. W. R. 621. 5. State V. Orrell, 75 N. C. 434, 69 S. E. R. 422. 6. People V. Van Eman, 111 Cal. 144; Carlson v. Winterson, • 147 N. Y. 652; Ballew v. United States, supra. EXAMINATION OF WITNESSES 69 1 § 75. Same. Conversations, etc. — Where a witness testifies on his cross-examination to part of a conversation, the party who called him may, on -the -redirect examination, bring out the rest of it.'^ This rule also applies to statements^ and transactions® in general. According to some de- cisions a broader latitude is allowed in, the case of conversations made with a party to the suit than is allowed in-the case of conversations with a third party. In the latter case it is limited to testimony that may explain or qualify the mat- ter brought out on the cross-examination; but in the former case any matter which pertains to the subject-matter of the suit may ^e shown. "The conversations of a party to a suit relative to the subject-matter of the suit, are in them- selves evidence against him in the suit; and if a counsel chooses to ask a witness as to anything* which may have been said by an adverse party, the counsel for that party has a right to lay be- fore the court all that was said by his client in the- same conversation; not only so much as may explain or qualify thei matter introduced by the previous examination, but even matter not'prop- 7. Nichols V. .Nichols, supra; Jackson v. State, 167 Ala. 44, 52 So. R. 835 ; Chicago City Ry. Co. v. Lowitz, 218 111. 24, 75 N.E. R. 755; Quiglcy v. Baker, 169 Mass, 303, 47 N. E. R.,1007; State v. Saidell. 70 N. H. 174, 46 Atl. R.1033, , ,85 Am. St. Rep. 627. ,8. Chesebrough v. Conover, 140 N. Y. 382, 35 N. E. R. 633 ; Wilkinson v. Eilers, 114 Mo. 245, 21 S. W. R. 514. 9. Lang v. Klatt, 135 Mich; 262, 97 N. W. R. 708; Fitzpat- rick V. State, 37 Tex. Cr. R. 20, 38 S. W. R. 806. 692 THE LAW OF EVIDENCE eriy connected with the part introdticed upon the previous examination, provided Only that it re- late to the subject-matter of 'the suit."^" On the redirect examination it is allowable'for the party who called the witness to bring out the details of a transaction testified to by him on his cross-examination/^ and also the surroundihg circumstances.^^ But, as a general rule, new matter should be excluded. ^^ / § 76. Witness discredited on cross-examina- tion.— Where a witness is discredited by testi- mony brought out on his crossTCxamination the party who called him may bring out testimony on his redirect examination that tends to reha- bilitate him.^* Thus, where a woman, on her cross-examination, admits that she has not al- ways led a virtuous life, it is proper to bring out on her redirect examination that she has re- formed.^* § 77. Rule as regards irrelevant testimony. — Ordinarily, irrelevant testimony is not allowed on 10. Com. V. Bishop, 165 Mass. 148. 11. People V. Ryder, ISl Mich. 187, 114 N. W. R. 1021; Breedlwe v. Breedlove, 27 Ind. App. S6O, 61 N. E. R. ~ 797 (divorce case). 12. State V. MoClellan, 23 Mont. 532, 59 Pac. R. 924, 75 Am. St. Rep. 558; Walkley v. Clarke, 107 la. 451, 78 N. W. R. 70. 13. Carlson v. Winterson, 147 N. Y. 652; Sohaser v. State, 36 Wis. 429; Shaffer v. Russell,, 28 Utah 444. 14. Morrow v. State, 56 Tex. Cr. R. 519, 120 S. W. R. 491. 15. Carter v. Com. (Ky.), 13 S. W. R. 921. ' JiXAMlNA-nON OF WITNESSES 69^ the redirect examination.^® But where this class of testimony is bro,ught out on the cross-examin- ation it is not prejudicial error to allow the, same class of testimony on the redirect examination to explain it.^'' This is a matter, however, which rests in the discretion of the court.^® Thus, the fact that, part of a hearsay conyersa,tion is - brought out on cross-examination does not en- title the, adverse party to bring out the rest, of it on the redirect examination.^® But where facts are brought out on the cross-examination which tend to impeach, the credibility of, the witness, counteracting testimony is admissible on there- direct examination although such testimony is otherwise irrelevant.^" Thusj where.a witness testifies on bis cross-examination that he came J from jail, he may- state on his redirect examina- tion the charge upon which he was eommitted.^^ § 78. Repetition of testimony not usually al- lowable.— Ordinarily, a witness should not be al- 16. Ellis y. State, 152 Ind. 326, 52 N. E. R. 82 ; Levels v. St. Louis, etc., Ry. Co., 196 Mo. 606, 94 S. .W. R. ,275; Roberts y. Boston, 149 Mass. 346, 21 N. E. R. 668. 17. Chicagp, etc., Ry. 'Co. v. Griffith, 44 Neb. 690, 62 N. W. R. 868; MaHoniwg Ore., etc., 'Co. v. Blomfelt, 163 Fed. R. 827, 91 C. C. A. 390; Sdbieffelinv.. Schieffelln, 127 Ala.. 14, 28 So. R. 687. 18. Cases cited in fooit-note 17. 19. Wagner v. People, 30 Mich. 384; McCrackeii v. West, 17 Ohio, 16. 20. Alpine v. State, 117, Ala. 93, 23 So, R. 130; State v. Lyons,. 113 La. 959, 37 So. R. 890; People v. Johnsop, 106 Cal. 289, 39 Pac. R. 622, . ; 21. State V. Ezell, 41 Tex. 35. 694 THE LAW OF EVIDENCE lowed, on his redirect examination, either to repeat or amplify the testimony gi,ven by him on his direct examination.^^ But where a witness, on his cross-examination, is led to modify a state- ment made by him on his 'direct examination, it is proper to attempt to show on his redirect ex- amination that his former statement is correct.^* Moreo\ier, it is not prejudicial error for a wit- ness to repeat on his redirect examination an answer given by him to a question propounded on his cross-examination.^* § 79. Change of conduct and reasons therefor. — Where a witness testifies on his cross-examin- ation concerning certain conduct manifested by him, he may be asked on his redirect examina- tion to state the reasons for such conduct.^^ And where he testifies on his cross-examination con- cerning a change in his conduct from what it formerly had been, he may be asked on his re- direct examination to state the reasons for the change.^® § 80. Identification of writing.- — Where a wit- ness on his cross-examination is asked to identify certa^in entries in a document, and the entries are 22. Marquette Cement Mfg. Co. v. Williams, 230 111. 26, 82 N. E. R. 424; Baker v. Sherman, 71 Vt.' 439, 46 Atl. R. S7; Alabama Steel, etc., Co. v. Thompson, 166 Ala. 460, 52 So. 75 ; Laucheimer v. Jacobs, 126 Ga. 261, 55 So. R. 55. 23. People v. Tubbs, 147 Midi. 1, 110 N. W. R. 132. 24. Alabama City, etc., Ry. Co. v. Sampley, 169 Ala. 372, 53 So. R. 142. 25. People v. Glover, 141 Cal. 233, 74 Pac. R. 745. 26. Baxter v. Abbott, 7 Gray (Mass.) 71. EXAMINATION OF WITNESSES 695 not offered in evidence, the adverse party is not entitled, on the redirect examination, to intro- duce the document in evidence. ^'^ But where the witness is cross-examined concerning the con- tents of a document the adverse party may ques- tion jhim, on the redirect exatnination, concern- ing the document. '^^ § 81. Leading questions. — Leading questions are not excluded on the redirect examination, but much less freedom is allowed in the use of them than on cross-examination. In refreshing the memory of the witness, his attention may be called to prior conversations concerning subject- matter testified to by him on his cross-examina- tion, and to the times and places at which they occurred.^® And where new matter is brought out on the cross-examination, leading questions are allowable where the purpose is to have the witness explain or modify his testimony.^" § 82. Discretion of the trial court. — As re- gards the scope of the redirect examination the trial judge has large discretion. ^^ He may con- 27. People v. Van Ewaai, 111 Cal. 144, 43 Pac. R. 520'; Fre- mont Butter, etc., Co. v. Peters, 45 Neb. 356, 63 N. W. R. 791. 28. Missisquoi Bank v. Bvarts, 45 Vt 293; Vaughan v. Mc- Carthy, 63 Minn. 221, 65 N. W. R. 249. 29. Parrel v. Bostcni, 161 Mass. 106, 36 N. E. R. 751; Gil- bert V. Sage, 57 N. Y. 639. 30. Chicago v. Sutton, 136 111. App. 221. 31. Stillwell V. Patton, 108 .Mo. 352, 18 S. W. R., 1075 ; Noel V. State, 161 Ala. 25, 49 So. R. 824; Concord Apart. House Co. V. O'Brien, 228 111. 360, 81 N. E. R. 1038. 09^ THE LAW QF EVmENCE / fine it stric|t]y within the scope af the cross-ex- amination, or permit it J to be extended beyond it.**^ The fact that he allows new matter to be brought out on the redirect examination is not prejudicial error.** §83. The recross-examination. - — Ordinarily, a recross-examination is not allowed.** , This is owing- to the fact that the adverse party is re- qviired to exhaust his cross-examination of the witness in the' first instance.*^ But where new matter is introduced on the, redirect examination the adverse party may be allowed to recross- examine- the witness. This is a matter, however, which rests in the discretion of the court.*® But where, new matter i^ brought. out ,on the redirect examination which does not tend to explain or rebut testimony already given by the witness the adverse party is entitled to recross-examiije him.*'^ The recross-exarnination, when allowed, should be restricted to matters concerning which 32. Maqtif., etc., Bank v. Koch, 105 N. Y..630, 12 N. E. R. 9.;. State V. Lyons, 1\3 La. 959, 37 So. R. 890. 33. Treadwell v. State, 168 Ala. 96, S3 So. R. 290 ; Springfield - V. Dalby, 139 111." 34, 29 N. E. R. 860; Graham v. Mc- Reynolds, 90 Tenn. 673, 18 S. W.^ R. 272: 34. Troup V. State, 160 Ala. 125, 49 So. R. 332. 35. Troup V. State, supra. 36. Brown v. State, 72 Md. 468, 20 Atl. R. 186; State v. ! -"Haab, 105 La. 230, 29 So. R. 725; Atl. & D. R. Co. v. , •Rjeg'er, 95 Va. 418, 28 S. E. R. 590. 37. Wood V. McGuire, 17 Ga. 303. EXAMINATION OF WITNESSES 697 the witness has already testified.^* Moreover, it should not extend, to matters to which he might have testified on his cross-examination.^^ § 84. Impeachment of witnesses. In g^eneral. — There are four chief modes of impeaching the credibility of a witness. These four oiodes are as follows: (i) By a skillfur cross-examination. (2) By contradictory testimony of other wit- nesses. (3) By proving statements made by him out of court inconsistent with his statements on the witness stand. (4) By showing by other wit- nesses that his general reputation for veracitv is bad. § 85. Presumption of credibility. — Ordinarily, when a witness takes the stand a presumption exists that he will state the truth. Some courts treat this presumption as one of law,*° while other courts hold the contrary.*^ As regards the credibility of 1 witnesses, however, there is no such thmg as legal equality.*^ Jurors, in de- termining the weight of testimony, may give consideration- to the demeanor of a witness, and 38. Hoover v. State, 161 Ind. 348, 68 N. E. R. 591 ; State v. ■Heidelberg, 120 La. 300, 101 N." W. R. 105 ; Stutsman v. Sharpless, 125 la. 335, 101 N. W. R. 105. 39. Mechanics' Bank v. Woodward, 73 Conn. 470, 47 Atl. R. 762. 40. Pereira v. Star Sand Co., SI Oreg. 477, 94 Pac. R. 835; Comstock V. Rayford, 12 Sm. & M. (Miss.) 369. 41. Stix v. Keith, 85 Ala. 455, 5 So. R. 184. 42. Brethauer v. Schorer, 81 Conn. 143, 70 Atl. R. 592. 698 THE LAW OF EVIDENCE Other -circumstances observed by them during the trial.*^ § 86. What witnesses may be impeached. — Any witness who testifies in a case is subject to be impeached. This rule is applicable to parties to the suit, both in civil** and criminal*® cases, as well as^to other parties. It is applicable to a merely nominal party to the suit.*® Also to an accomplice.*^ Moreover, where a defendant in a criminal case takes the stand in his own behalf a liberal rule is allowed.** § 87. Party may not impeach his own witness. — As a general rule, the party who calls a wit- ness may not impeach him.*® This rule is ap- 43. Howard v. Louisville Ry. Co., (Ky.) 105 S. W. R. 932, 32 Ky. L. Rep. 309. 44. Wefel v. Stillman, ISl Ala. 249, 44 So. R. 203 ; Barnes v. Loomis, 199 Mass. S78, 85 N.-E. R. 862. 45. People v. Gray, 135 Mich. 542, 98 N. W. R. 261; Parb v. State, 143 Wis. 561, 128 N. W. R. 65 ; State v. Hubbard, 223 Mo. 80, 122 S. W. R. 694; Clinton v. State, 58 Fla. 23, 50 So. R. 580 ; Kirklin v. State, 168 Ala. 83, 53 So. R. 253. 46. Carey v. Henderson, 61 111. 378. 47. State V. Hardin, 46 la. 623, 26 Am. Rep. 174; McGmder V. State, 71 Ga. 864. 48. Southworth v. State, 52 Tex. Cr. R. 532, 109 S. W. R. 133. 49. JohMston v. Marriage, 74, Kan. 208, 86 Pac. R. 461, 87 Pate. R. 74; Becker v. Koch, 104 N. Y. 394, 10 N. E. R. 701, 58 Am. Rep. 515; Chicago City Ry. Co. v. Gregory, 221 111. 591, 11 N. E. R. 1112, 6 Ann. Cas. 220; State v. Fletcher, 127 La. 602, 53 So. R. 877 ; Western Union Tel. Co. V. Northcutt, 158 Ala. 539, 48 So. R. 553, 132 Am. St. Rep. 38. See also, for full discussion of this subject, 21 L. R. A. 418-433. Also, 82 Am. St. Rep. 57, and 60 Am. Dec. 749-752. EXAMINATION OF WITNESSES 699 plicable to the state in a criminal prosecution.^" The basis of the rule is the presumption that the party who calls the witness vouches for his ver- acity. There are, however, some exceptions to this rule. Thus, where a party to the suit is obliged to call a certain witness, as in the case of a subscribing witness to a will, or other docu- ment, he may impeach him.^^ Also where the prosecuting attorney in a criminal case is re- quired by the law of the state to call all witnesses capable of giving testimony which would eluci- date the case.®^ As said by Dr. Greenleaf, "Where the witness is not one of the party's own selection, but is one whom the law obliges him to call, such as a subscribing ivitness to a deed or a will, or the like; here he can hardly be consid- ered as the witness of the party calling him, and therefore, as it seems, his character for truth may generally be impeached."^* § 88. Same. Inconsistent statements out of court. — Whether or not a party may show that his own witness made statements out of court inconsistent with those testified to by him on the stand is a question upon which the authorities do not agree. This difference of opinion exists in this country, and formerly existed in England 50. State V. Keefe, 54 Kan. 197, 38 Pac. R. 302 ; Carr v. State, 43 Ark. 99; State v. Cox, 151 N. C. 698, 66 S. E. R. 128. 51. Newell v. White, 29 R. I. 343, 73 Atl. R. 798; Smith v. Utesch, 85 la. 381, 52 N. W. R. 343 ; Whitman v. Morey, 63 N. H. 448, 2 Atl. R. 899. 52. State v. Slack, 69 Vt. 486, 38 Atl. R. 311. 53. Greenl. on Evid., § 443. 700 _THE LAW OF EVIDENCE until the question was settled by a statute.^* In some jurisdictions of this country also the ques- tion has been settled by statute. In the absence of statute, according to the great weight of au- thority the party who calls the witness may not discredit him by showing the inconsistent state- ments made by him out of court. ^^ This rule was the weight of authority in England prior to the English statute on the subject, and it is still the rule there, except where the party who calls the witness proves that the latter is adverse to him. Tlie statutes of this country upon the subject are practically similar to the English statute. They usually provide that where the' witness is ad- verse to the party who has called him, or sur- prises, entraps or deceives him, the inconsistent statements made by the witness out of court may be shown by other witnesses.^® In some states, however, they are broader than in other states.^''' § 89. Calling the adverse party or his wit- 54. 17 & 18 Vict., ch. 125; 28 & 29 Viot., ch. 18. See also, Steph. Dig. of Evid., art. 130.- 55. Smith V. Dawley, 92 la. 312,, 60 N. W. R. 625; Westhal v. R}^ Co., 134 Mich. 239, 96 N. W.- R. 19; Dixon v. State, 86 Ga. 754; Adams v. Wheeler, 97 Mass. 67; Richards v. State, 82' Wis. 172, 51 N. W. R. 652. 56. Mercer v. State, 41 Fla. 279, 26 So. R, 317; Gordon v. Funkhouser, 100 Va. 675, 42 S. E. R. 677; Richardson v. State, 100 Ga. 391, 33 S. E. R. 639; Thiele v. Neiwman, 116 ■Gal 571, 48 Pac. R. 713. 57. Manning v. Carberry, 172 Mass. 432, 52 N. E. R. 521; Adams v. State, 156 Ind. 596, 59 N. E. R. 24; State v. Bloor, 20 Mont. 574, 52 Pac. R. 611. EXAMINATION OF WITNESSES 7OI nesses to the stand.— Where one of the parties to a suit calls the adverse party as a witness he may not impeach him directly.^* He may, however, draw from his testimony any inferences that may fairly be drawn from it.^* And where he calls a witness of the adverse party to testify to certain facts he may not impeach him.*"' Moreover, the adverse party wlio first called him may not im- peach him,®^ unless his first material testimony is given on behalf of the other party. ^^ Where a witness is summoned by one party, but, is not examined by him, and the adverse party calls him to the stand, the party who sum- mons him may impeach him. ®^ But the party who examines him may not impeach him, al- though he is summoned by the other party.** 58. Black v. Epstein, 221 Mo. 286, 120 S. W. R. 754; O'Neil V. Adams, 144 la. 385, 122 N. W. R. 976; Sawyer v. Moyer, 109 111. 461 ; Dravo v. Eabel, 132 U. S. 487, 10 S. a. 170, 33 L. ed. 421. 59. Black v. Epstei-n, supra; McLean v. Clark, 31 Fed. R. 501. 60. Ri'chards v. State, supra; Com. v. Hudson, 11 Gray (Mass.) 64; Craig v. Grant, 6 Mich. 447. See also, note, . 21 L. R. A. 418. 61. Johnston v. Marriage, supra; State v. Taylor, 88 N. C. 694; Baltimore, etc., Ry. Co. v. State, 107 Md. 642, 69 Atl. R. 439, 72 Atl. R. 340. 62. Fine V. Internrban St: Ry. So., 45 Misc. (N. Y.) 587, 91 N. Y. Suppl. 43. See also. Hall Incorp. Town of Manson, 99 la. 698, 68 N. W. R. 922. 63. Milton v. State, 40 Fla. 251, 24' So. R. 60; Neil v. Childs, 32 N. C. 195; Bebee v. Tinker, 2 Root (Oohn.) 160. 64. Boston V. State, 86 Neb. 114, 125, N. W. R. 144; Miisick V. Ray, -3 Mete. (Ky.) 427. 702 THE LAW OF EVIDENCE The principles involved in this case are also ap- plicable to depositions which are taken by one of the parties to the suit and used by the other party.^^ § 90. Impeaching a witness by showing his ^neral reputation. — The terms "character" and "reputation" are not literally synonymous, but in this connection they are quite generally used interchangeably. Character, in its exact sense, is the peculiar inherent quality, or aggregate of qualities, impressed by nature, habit or educa- tion, by which a person or thing is distinguished from others. While general reputatioii is the character imputed to a person or. thing, by the public, in the community in which he or it lives. A witness of the adverse party may be im- peached by showing that his general reputation, in the community in which he lives, is bad. This rule is applicable to all witnesses who testify in a case.^" It applies to a party to the suit in a civil case,®'^ and to the defendant in a criminal case.^^ It also applies to the prosecuting wit- 65. Bloomington v. Osterlie, 139 III. 120, 28 N. E. R. 1068; Music V. Ray, supra. 66. People v. Palmer, 105 Mich. 568, 63 N. W. R. 656; Fields V. State, 121 Ala. 16, 25 So. R. 726. 67. Hofacre v. Monticello, 128 la. 239, 103 N. W. R. 488; Duffy V. Radke, 138 Wis. 38, 119 N. W. R. 811. 68. State v. Greenburg, 59 Kan. 404, 53 Pac. R. 61 ; State v. Priest, 215 Mo. 1, 114 S. W. R. 949; Com. v. Bonner, 97 Mass. 587; People v. Soeder, 150 Cal. 12, 87 Pac. R. 1016; EXAMINATION OF WITNESSES 703 , § 91. Time and place of reputation. — It is not essential that the impeaching witness Hve in the community in which the party resides. '''' Nor is it essential that the latter is at present residing in the community in which the general reputa- tion iri question exists.''^ Nor is it essential to confine the inquiry to the present time.'^^ It may be shown that the reputation was of long stand- ingJ* The testimony, however, must tend to prove the party's present character.'^* If the time is too remote the testimony should be ex- Sweatt V. State, 156 Ala. 85, 47 So. R. 194; People v. De- Catnp, 146 Mich. 533, 109 N. W. R. 1047. 69. State v.' Blackburn, 136 la. 743, 114 N. W. R. 531; White V. State, 114 Ala. 10, 22 So. R. 111. 70. Hadjo V. Gooiden, 13 Ala. 718 (12 miles distant); Du- pree v. State, 33 Ala. 380, 73 Am. Dec. 422 (20 miles dis- tant) ; Wallis V. White, 58 Wis. 26. 71. Coates v. Sulau, 46 Kan. 341 ; Sage v. State, 127 Ind. 5 ; State V. Knight, 118 Wis. 417, 95 N. W. R. 390. ' 72. Coates v. Sulau, supra; State v. Knight, supra; (2 years; extended discussion) ; State v. -Miller, 156 Mo. 76, 56 S. W. R. 907; State v. Fry, 96 Tenn. 467, 35 S. W. R. 383 (6 years) ; Watkins v. State, 82 Ga. 231, 8 S. E. R. 875, 14 Am. St. Rep. 155 (8 years). 73. State v. Miller, 156 Mo. 16, 56 S. W. R. 907. 74. People v. Mix, 149 Mich. 260, 112 N. W. R. 907, 12 Ann. Cas. and note. 75. State v. Reed, 53 Kan. 767, 37 Pac. R. 174, 42 Am. St. Rep. 322 (15 years); Sage v. State, 127 Ind. 15 (7 years); State V. Potts, 78 la. 656 (6 years) ; Baker v. Com. 106 Ky. 212, 50 S. W. R. 54, 20 Ky. L. Rep. 322 (15 years) ; Wood V. Mathews, 73 Mo. 477 (3 years) ; Miller v. Miller, •187 Pa. St. 572, 41 Atl. R. 277 (4 years). 704 THE LAW OF EVIDENCE cludedJ^ This is a matter which rests in the sound discretion of the court.'^^ Personal acquaintance of the impeaching wit- ness with the party is not essential. ^^ But a mere stranger who goes into the community to learn, his general reputation is not qualified to testify against him.''* As regards the place to which the inquiry -may relate, this is a matter which depends upon the circumstances of the particular case.''^ The rule, generally speaking, is quite flexible. As said in the Texas case cited: "Upon authority and sound principles, we think it may safely be said that where the evidence of a witness is such that it fairly raises the issue of his veracity, or where the testimony of other witnesses relating to his character at or near the time of the trial to im- peach his character for truth and veracity, or in case the person whose character is in issue has removed beyond the jurisdiction of the court, or has been transient, so that he has no fixed and known residence for a time sufficient to make a reputation for truthfulness, resort may be had to evidence of the reputation of such witness at the place of his former residence, and at a time remote from the time of trial. No definite rule 1(>. Ruse V. Page, 32 Minn. Ill, 19 N. W. R. 736, 20 N. W. R. 95 ; Snow v. Grace, 29 Ark. 131. n . State V. Turner, 36 S. C. 534., 78. Haky v. State, 63- Ala. 83; Reid v. Reid, 17 N. J. Eq. 101. 79. Brown v. Perez, 89 Tex. 282, 34 S. W. R. 725; In re Brown, 143 la. 649, 120 N. W. R. 667! EXAMINATION OF WITNESSES 705 can be stated which will apply to all cases." Where a witness has Changed his place of^ resi- dence from time to time, his reputation in the various communities in which he has resided may be shown, provided the time is not too re- mote.*" The mere fact that he resided in a com- munity a comparatively short time does not ren- der this class of evidence inadmissible, provided he acquired a reputation while living there. *^ But a reputation acquired in a place where he has never lived, *^ or in which'he. visited but a short time, may not be shown.** § 92. Scope of general reputation. — In most of the states this class of impeaching testimony is confined to general reputation' for truth and veracity.** This rule also obtains in the federal courts.*^ In several of the states, however, the 80. Watkins v. State, 82 Ga. 231, 8 S. E. R. 875, 14 Am.. St. Rep. ISS; Hauk v. State, 148 Ind. 238, 46 N. E. R. 127, 47 N. E. R. 465; People v. Mix, 149 Mioh. 260, supra; , In re Brown, supra; State v. Cushenberry, 157 Mo. 168, 56 S. W. R. 737. 81. Staite V. Cushenberry, supra. 82. Combs V. Com., 97 Ky. 24, 29 S. W. R. 734, 16 Ky. L. Rep. 699. 83. Waddingham v. Hulett, 92 Mo. 528, 5 S. .W. R. 27 (3 months).' 84. Com. V. Williams, 209 Pa. St. 529, 58 Atl. R. 922; Dufl- gan V. State, 135 Wis. 151, 115 N. W. R. 350; Missouri, etc., Ry. Co. v. Creason, 101 Tex. 335, 107 S. W. R. 527; 'Maloy V. State, 52 Fla. 101, 41 So. R. 791; Hoffiman v. State, 93 Md. 338, 49 Atl. R. 658 ; Laclede Bank v. Keller, 109 111. 385. 85. United States v. White, 28 Fed. Cas. No. 16, 675, 5 Cranch C. C. 38. 7o6 THE LAW OF EVIDENCE impeaching- testimony may extend to the general moral character of the witness. This view ob- tains in Missouri, Tennessee, Kentucky, Iowa, California, Indiana, Alabama, Arkansas, Idaho, Louisiana and North Carolina.®® It also obtains in England.*'^ And it has been recognized in New York.ss ' " Where the accused in a criminal case takes the stand in his own behalf he may not be im- peached by showing that his general moral character is bad, unless he has put it in issue.** But his general reputation for truth and veracity may be shown as in the case of any other wit- ness.'" § 93. Testimony as to particular facts inad- missible.^The credibiHty of a witness may not 86. State V. Barnet, 203 Mo. 640, 102 S. W. R. 506; Peek v. State, 86 Tonn. 259, 6 S. W. R. 389 ; Smith v. Com., 109 Ky. 685, 60 S. W. R. 531, 22 Kj. L. Rep. 1349; State v. Blackburn, 136 la. 743, 114 N. W. R. 531 ; People v. Wal- ker, 140 Cal. 153, 73 Pac. R. 831; Dotterer v. State, 172 Ind. 357, 88 N. E. R. 689 ; Lawman v. State, 161 Ala. 47, 50 So. R. 43; Rincaid v. Price, 82 Ark. 20, 100 S.. W. R. 76; State, v. Anthony, 6 Ida. 383, 55 Pac. R. 884; State v. Guj^ 106 La. 8, 30 So. R. 268; State v. Boswell, 13 N. C. 209. 87. Rex V. Bispham, 4 C. & P. 392, 19 E. C. L. 569. 88. Calkins v. Colburn, 10 N. Y. St. 778. 89. People v. Hinksman, 192 N. Y. 421, 85 N. E. R. 676; Clinton V. State, 53 Fla. 98, 43 So. R. 312, 12 Ann. Cas. ISO. 90. State V. Buffington, 71 Kan. 804, 81 Pac. R. 465, 4 L. R. A. N. S. 154; Kijgore v. State, 124 Ala. 24, 27 So. R. 4; State V. Priest, 215 Mo. 1, 114 S. W. R. 949; Ball v. United States, 147 Fed. R. 32, 78 C. C. A. 126. 'EXAMINATION OF' WITNESSES 707 be •impeached by testimony as to particular facts. "^^ Thus, testimony is inadmissible to show particular acts of immorality;®^ instances of in- toxication,®* etc. Nor may the credibility of a witness be impeached by showing that he asso- ciated with lewd and unchaste women;"* or that he was given to "rows" f^ or is reputed to be a horse thief;®* or was indicted for perjury;®'' or is an habitual litigant.®* The credibility of a fepiale witness may not be impeached by proving par- ticular acts of unchastity;®® or by showing that 91. Deck V. Ry. Co., 100 Md. 168, 59 Atl. R. 650, 108 Am. St. Rep. 399; People v. Wilson, 133 Mich. il7, 99 N. W. R. 6; State v. Nelson, 101 Mo. 464; Gates v. Bowers, 169 N. Y. 14, 61 N. E. R. 993; Lowman v. State, 161 Ala, 47, 50 So. R. 43 ; Dunin v. State, 162 Ind. 174, 70 N. E. R. 521 ; Com. V. McLaughlin, 12 Mass. 449. 92. Spencer v. Robbiris, 106 Ind. 580, 5 N. E. R. 726 ; State v. Rogers, 108 Mo. 202, 18 S .W. R. 976; In re Gird, 157 Cal. 534, 108 Pac. R. 499, 137 Am. St. Rep. 131. 93.'Hoge V. People, 117 III. 35, 6 N. E. R. 796; People v. Gray, 148 Cal. 507, 83 Pac. R. 707; State y. Nelson, 101 Mo. 464. 9f. Hudson V. State, 41 t«x. Cr. R. 453, 55 S. W. R. 492, 96 Am. St. Rep. 789; State v. Jackson, 44 La. Ann. 160, 10 So. R. 600. 95. Briggs V. Com., 82 Va. 554. 96. Crane v. Thayer, 18 Vt. 162, 46 Am. Dec. 142. 97. Bennett v. State, 47 Tex. Cr. R. 52, 81 S. W. R. 30; Johnson v. Com. (Ky.), 61 S. W. R. 1005, 22 Ky. L. Rep. 1885. 98. Palmeri v. Manhattan Ry. Co., 133 N. Y. 261, 30 N. E. R. 1001, 28 Am. St. Rep. 632, 16 L. R. A. 136. 99. People v. O'Hare, 124 Mich. 515, 83 N. W. R. 279; Perry V. State, 149 Ala. 40, 43 So. R. 18; State v. Romero, 117 La. 1003, 42 So. R. 482. 708 THE LAW OF EVIDENCE she associates with a man of bad character ;^'"' or even that she is a cornmpn prostitute.^ "By a notorious want of chastity, a female will cer- tainly obtain a bad character, and her general reputation, if she has acquired any, may be given in eyidence to impeach her; but not the particu- lar and independent fact that she is a prostitute, or keeps a house of ill-fame."^ On the cross-examination, however, the cred- ibility of a wit^ness may be impeached, by testi- mony of particular facts. Thtis, a female wit- ness may be asked on cross-examination whether she is a prosti1:ute f whether she has kept a house of ill-fame;* or lived in adultery;^ or been the kept mistress of a given rhan;" or has given birth to an illegitimate child." A witness niay refuse, of course, to answer incriminating questions.^ The credibility of a witness may not be im- peached by showing by other witnesses that he 100. Western, etc., Ry. Co. v. Vattghan, 113 Ga. 354, 38 S. E. R. 851.' 1. People V. Chin Hane, 108 Cal. 597, 41 Pac. R. 697; Tucker V. Tucker, 74 Miss. 93, 19 So. R. 955, 32 L. R. A. 623. 2. Birmingham Union Ry. Oo. v. Hale, 90 Ala. 8, 8 So. R. 142, 24 Aim. St. Rep. 748. 3. McVey v. State, 55 Neb. 777, 76 .N. W. R. 438 ; Brittain v. State, 47 Tex. Cr. R. 597, 85 S. W. R. 278. 4. State y. Hack, 118 Mo. 92, 23 S. W. R. 1089. 5. Tla-koo-yel-lee v. United State, 167 U. S. 274, 17 S. Ct. 855, 42 L. ed. 6. Exon V. State, 33 Tex. Cr. R. 461, 26 S. W. R. 1088. 7. Exon V. State, supra; Campbell v. State, 23 Ala. 44. 8. Zanone v. State, 97 Tenn. 101, 36 S. W. R. 711, 35 L. R. A. 556. EXAMINATION OF WITNESSES 709 J \ is a "sporting man";® or has the reputation of beiing a quarrelsome person;^" or haS the repu- tation of being dishoriest;^^ or that his saloon has a bad reputation ;^^ or that he is a spiritual- ist;^^ or has the reputation of being a horse thief ;'^* or has intemperate habits ;^'* or is a dan- gerous person when into:^icated ;^® or is reputed to be guilty of a particular offense.-^'' The tmchastity of a female witness may not be proved by other witnesses where the purpose is to impeach her credibility. But where the ques- tion of her chastity is material to the issue, such, testimony is admissible. Thus, in a prosecution for rape, indecent assault, etc., the character of the prosecutrix for chastity is in issue, and testi- mony upon this point is admissible. ^^ Whether or not the reputation of a male' wit- ness for unchastity is admissible to impeach^ his 9. Kalteyer v. Mitchell, (Tex. Civ. App. 1908), 110 S. W. R. 462. 10. State V. Richardson, 194 Mo. 326, 92 S. W. R. 649; Pad- ron V. State, 41 Tex, Cr. R. 548, SS S. W. R. 827. 11. Calkins v. Ann Arbor Ry. Co., 119 Mich. 312, 78 N. W. R. 129; State v. Guy, 106 La. 8, 30 So. R. 268. 12. Opper V. Davega, 126 N. Y. App. Div. 941, 111 N. Y. Suppl. S21. 13. Blaisdell v. Raymond, 9 Abb. Pr. (N. Y.) 178, note. 14. Crane v. Thayer, 18 Vt. 162, 46 Am. Dec, 142. 15. Hoitt V. Moulton, 21 N. H. 586. 16. State v., Nelson, 101 Mo. 464. . 17. State V. Howti, 107 N. C. 810. 18. People V. Wilson, 133 Mich. 517, 99 N. W. R. 6; Com. v. Churchill, 11 Mete. (Mass.) 538, 45 Am. Dec. 229; State V. Morse', 67 Me. 428. 7IO THE LAW OF EVIDENCE credibHity is a question upon which the decis- ions are not harmonious. Some answer it in the affirmative/^ and some in the negative.^" § 94. Impeaching credibility by showing con- viction of crime. — The credibility of a witness may be impeached by showing that he has been .convicted of a crime,^^ provided the conviction is not too remote,"^ Ordinarily, however, the conviction nxust be of a felony,^' or of an in- famous crime,** or of a crime which involves 19. People V. Mills, 94 Mich. 630; State v. Shroyer, 104 Mo. ( 441, 16 S. W. R. 286, 24 Am. St. Rep. 344. 20. State v. Sibley, 131 Mo. 519, 33 S. W. R. 167; Staite v. Coffey, 44 Mo. App. 4SS. 21. Clifford v. Pioneer Fi're-Proofing Co., 232 111. 150, 83 N. E. R. 448 (rape) ; State v. Carter, 121 la. 135, 96 N. W. R. 710; Dotterer v. State, 172 Ind. 357, 88 N. E. R. 689 (assault); Rollings v. State, 160 Ala.. 82, 49 So. R. 329; O'Connell v. Dow, 182 Mass. 541, 66 N. E. R. 788; People V. Sdeder, ISO Cal. 12, 87 Pac. R. 1016. 22. Bogus V. State, 55 Tex. Cr. C. 126, 114 S. W. R. 823, 131 Am. St. Rep. 804 (IS years) ; State v. Kent, 5 N. D. 516, 67, N. W. R. 1052, 35 L. R. A. 518 (20 years) ; Linz v. Skinner, 11 Tex. Civ. App. 512, 32 S. W. R. 915 (emhez- zlement; lOiyears). Contra, Staite V. Farmer, 84 Me. 436, 24 Atl. R. 985 (selling intox. liquor; 27 years). 23. Davidson v. Watts, 111 Va. 394, 69 S. E. R. 328; People V. Gray, 148 Cal. 507, 83 Pac. R. 707; Hayden v. Com., 140 Ky. 634, 131 S, W. R. 521. 24. Smith V. State, 129 Ala. 89, 29 So. R. 699, 87 Am. St. Repl 47; McLean v. Chicago, 127 111. App. 489; McKevitt v. People, 208 111. 460, 70 N. E. R. 693 (seiitented to state reformatory) . EXAMINATION OF WITNESSES 7II moral turpitude.^^ As a general rule, convic- tion of a mere misdemeanor,^® which is not in- famous in its nature,^''^ or which does not involve moral turpitude,^^ may not be shown. As said in a California decision, "If, in any case, a record of conviction of a misdemeanor is admissible for the purpose of discrediting, it should be made to appear that the offense involved moral turpitude or infamy."^^ An infamous crime has been defined as one which "shows such depravity in the perpetrator, (or such a disposition to pervert public justice in the courts, as creates a violent presumption against his truthfulness under oath."^" The fact that an appeal is pending does not render testimony of the conviction inadmis- / 25. Sue V. State, 52 Tex. Cr. R. 122, lOS S. W. R. 804; Ford V. State,. 92 Ga. 459, 17 S. E. R. 667. See also. State v. Wormser, 129 N. Y. App. Div. 596, 113 N. Y. Suppl. 1093. 26. Andrews v. State, 118 Ga. 1, 43 S. E. R. 852; State v. Smith, 125 Mo. 2, 28 S. W. R. 181 (assault and battery) ; Utiey V. Merrick, 11 Mete. (Mass.) 302 (false pretenses). 27. State v. Donnelly, 130 Mo. 642, 32 S. W. R. 1124 (gamb- ling) ; Matzewbaugh v. People, 194 III. 108, 62 N. E. R. 546, 88 Am. St. Rep. 134 (fraudulent schedule of taxable property) . 28. Eads v. State, 17 Wyo. 459, 101 Pac. R. 946 (carrying con- cealed weapon) ; Webb v. State, 47 Tex. Cr. R. 306, 83 S. ' W, R. 394 (card playing) ; Gillraan v. State, 165 Ala. 136, 51 So. R. 722 (assault and battery). 29. People v. Carolan, 71 Cal. 195, 196, 12 Pac. 52. 30. Smith v. State, 129 Ala. 89, 29 So. R. 699, 87 Am. St ' Rep. 47. 712 THE LAW OF EVIDENCE sLble.^^ Where, on appeal, a conviction has been set aside and a new trial granted, and the accus- ed is subsequently acquitted, some courts hold- that testimony of the conviction is inadmis- sible,^^ while other courts hold the contrary.^* The fact that the witness w,as pardoned after his conviction does not render testimony of his con- viction inadmissible.*'^ Some courts hold that the credibility of a wit- ness may be impeached by showing his lack of reHgious belief,^" while other courts hold the contrary.^® § 95. Unchastity of prosecutrix in rape case. In England, and in some of the states of this ' country, the prosecutrix in a rape case may be asked on cross-examihation whether she had prior sexual intercourse with' men other than the accused. The witness, however, accordiiig to the English rule, may refuse to answer.*^ And, according to the English rule, if her answer 31. Viberg v. State, 138 Ala. 100, 35 So. R. 53, 100 Am. St. Rep. 22; Hackett v. Freeman, 103 la. 296, 72, N. W. R. 528. 32. Pigott V. Lilly, 55 Mich. 150, 20 N. W. R. 879. 33. Early v. State, 56 Tex. Cr. R. 492, 120 S. W. R. 431. 34. Gallagher v. People, 211 111. 158, 71 N. E. R. 842. 35. Brink v. Stratton, 176 N. Y.,1S0, 68 N. E. R. 148, 63 L. R. A. 182; Searcy V. Miller, 57 la. 613, 10 N. W. R. 912; Com. V. Burke, 16 Gray (Mass.) 33. 36. Starks v. Schlensky, 128 111. 1 ; Brundige v. State, 49 Tex. Cr. R. 596, 95 S. W. R. 527; People v. Copsey, 71 Cal. 548, 12 Pac. R. 721 ; Dickinson v. Beal, 10 Kan. App. 233, 62 Pac- R. 724. 37. Rex V. Holmes, 12 Cox C. C. 137. ' EXAMINATION OF WITNESSES 713 iis in the negative she may not be contradicted.^^ This is on the ground that the question is collat- ;era] to the issue. In iome jurisdictions of this country, however, it has been held that she may be contradicted.^" And in some jurisdictions she may be compelled to state whether she had prior connection with men other than the accused.*" The fact that she had prior connection with the accused may be proved by her own declara- tions.*^ And testimony is admissible in this class of cases to show habitual promiscuous inter- course with other men.** Moreover, testimony that she gave birth to an illegitimate child, prior to the alleged rape, is also admissible.** But the fact that the general reputation of her parents for chastity is bad may not be shown.** § 96. General reputation for violence. — The 'credibiJ!ity of a witness may not be impeached by showing by other witnesses that he has a gen- eral reputation of being a violent person.*^ Nor may it be impeached by showing that he has a 38. Rex V. Holmes, supra. 39. Strang v. People, 24 Mich. 1. 40. Rogers v. PeJople, 34 Mich. 345; Shirwin v. People, 69 111. SS. ' 41. State V. Cook (la,), 22 N. W. R. 675. ■ 42. Woods V. People, 55 N. Y. 515 ; Hall v. People, 47 Mkh. ; Rex V. JVlartin, 6 Car. & P. 562. 43. Wilson v. State, 17 Tex. App. 525. 44. State v. Anderson, 19 Mo. 241. v 45. Sweatt v. State, 156 Ala. 85, 47 So. R. 194; State v. Rich- ardson, 194 Mo. 326, 92 S. W. R. 649. 714 THE LAW OF EVIDENCE general reputation of being a turbulent person.*® Thus, a ruling by the trial court that the general reputation of the proscuting witness, in a murder case,, of being a violent, dangerous and quarrel- some person, be excluded has been held not pre- judicial error. *'^ § 97. Hostility, bias, sympathy, etc. — As pre- viously stated, a witness /may not be impveached by proving inconsistent statements made by him out of court, where such statements . concern facts collateral to the issue. *^ But where the witness denies on cross-examination that he made statements out of court which manifested hostility or bias toward the adverse party he may be contradicted.** Moreover, by the weight of authority, the particulars or details of the cause of the hostility or bias may be shown.*® Some courts, however, have held the contrary.*" Where the inquiry would lead to interminable investigations the testimony shc^uld be exclud- ed.*^ Where the testimony is proper, the atten- 46. Padron v. State, 41 Tex. Cr. R. 548, SS S. W. R. 827. 47. Johnson v. Brown, 130 Ind. 534, 28 N. E. R. 698; North Chicago St. Ry. Co. v. Southwick, 165 111. 494, 46 N. E. R. 698.' 48. Carr v. Moore, 41 N. H. 131, Swett v. Shumway, 102 Mass. 365, 3 Am. Rep. 471. 49. Langhorn v. Com., 76 Va. 1012 ; Polk v. State, 62 Ala. 237. 50. Drum v. Harrison, 83 Ala. 384, 3 So. R. 715; People v. Webster, 139 N. Y. 78, 34 N. E. R. 730. 51. State V. Dee, 14 Minn. 27. EXAMINATION OF WITNESSES 715 tioii of the witness should l^e directed to the time and the place of making the hostile statements. ^^ The matter of hostility or bias on the part of a witness toward the adverse party may be brouglit out on cross-examination, or shown by other witnesses.^" § 98. Same. Cross-examination. — In attempt- ing to show, on cross-examination, hostility or bias of the witness, great latitude is allowable. Thutey counsel may ask a witness for the prose- cution if there is an understanding that in case the accused is convicted he is to receive a re- ward.^* A witness may be asked if he has staked a bet on the decision of the case f^ whether he or his wife has an interest in the subject-matjter of the suit;^® whether he has agreed to pay the attorney fees of the party who summoned him.^'^ A female witness may be asked on cross-examin- ation if she has had improper relations with a party to the suit;*** and whether the deceased was not hei- lover.^* . § 99. Opinion testimony as to credibility of 52. Langhome v. Com., su^pra; Davis v.v^tarte, 51 Neb. 301, 70 N. W. R. 984. ' 53. People v. And«rgon, 105 Cal. 32, 38 Pac. R. 513; Swett v. Shtimway, supra; People v. Webster 139 N. Y. 73, 34 N. E. R. 730. 54. Taylor v. United States, 89 Fed. Rep. 954. 55. People v. Parker, 137 N. Y. 535, 32 N. E. R. 1013. 56. Renonx v. Geney, 65 N. Y. Supp. 508. ' 57. Magruder v. State, 35 Tex. Ct. R. 214, 33 S. W. R. 233. 58. Martin v. State, 125 Ala. 64, 28 So. R. 92. 59. People V. Worthingfcon, 105 Cal. 166, 38 Pac. R. 689. 7l6 THE LAW OF EVIDENCE witness. — Ordinarily, the personal opinion of an impeaching witness, as to the credibility of the witness sought to be impeached, is inadmissible. But, both in England and in this country, after the impeaching witness has testified to the gen- eral reputation of the witness sought to be im- peached, he may state, based upon that general reputation, whether or not he would believe him on oath.*" § 100. Number of impeaching witnesses. — The number of impeaching witnesses that may testify against the credibility of a witness of the adverse party is a matter which rests in the sound discretion of the court. ''^ § loi. Effect of impeachment. — The weight to be given impeaching testimony is a matter which r^ests with the jury. ^Hence the court niay prop-, erly refuse to instruct them that the testimony of the witness impeached should be disregarded.®^ § 102. Sustaining testimony. — For the pur- pose of sustaining the credibility of a witness testimony is inadmissible unless his credibility 60. Hamilton v. People, 29 Mich. 173, 185- (full discussion 'of subject); Bogle's Executors v. Kreitzer, 46 Pa. St. 465; I^eopk V. Wend. (N. Y.) 309, 315; Knight v. House, 29 Md. 194. 61. BisseM V. Cornell, 24 Wend. (N. Y.) 354; Bunnell v. But- ler, 23 Conn. 65. 62. Funderburg v. State, 100 Ala. 36, 14 So. R. 877 ; Bran v. .Campbell, 86 Ind. 516; Johnson v. State, 129 Wis. 146, 108 N. W. R. 55. EXAMINATION OF WITNESSES "JVJ has be^n impeached.®' But where his credibility- has been attacked, either directly,®* or on dross- examination,*^ testimony is admissible to sus- tain him. And- in such case it is not essential that the impeaching testimony offered be suc- cessful.*-'® But -where the -witness is a$ked on cross-examination -whether he has been convictj- ed of a crime, and he ans-wers in the negative, a sufficient basis for sustaining testimony is not creajted.®'^ On the other hand, proof that he has been convicted of a felony, or of a crime involv- ing moral turpitude or infamy, is a sufficient basis for the iritroduction of sustaining testi- mony.®* But proof of mere bias on the part of the witness is not sufficient.®* Nor is the mere fact that statements made by him on the stand create doubt as to his credibility.''®' But where 63. Johnson v. State, 129 Wis. 146, 108 N. W. R. 55; Fun- derburg v. State, 100 Ala. 36, 14 So. R. 877. 64. State v. People, 85 N. Y. 390; State v. Taiwney, 78 Kan. 855, 99 Pac. R. 268; Watson v. State, ISS Ala. 9, 46 So. R. 232 ; Bartlesville First Na,t. Bank v. Blakeman, 19 Okla. 106, 91 Pac. R. 868, 12 L. R. A. N. S. 364. 65. Wapfield v. Lduis-ville, etc., Ry. Co., 104 Tenn. 74, 55 S. W. R. 304, 78 Aip. St. Rep. 911. 66. Com. V. Ingrahain, 7 .Gray (Mass.) 46, 49. But see Har- rington V. Lincoln, 4 Gray (Mass.) 563, 64 Am. Dec! 95. 67. Birmingham R., etc., Co. v. Bllard, 135 Ala. 433, 33 So. R. 276. ■ 68. Kraimer V. State, 117 Wis. 350, 93 N. W. R. 1097; Gertz V. Fitdhb'urg Ry. Co., 137 Mass; 77, SO A^. Rep. 285. 69. Shields v. Conway, 133 Ky. 35, 117 S. W. R. 340. 70. Bro^vn v. Mooers, 6 Gray (Mass.) 451 ; Rogers v. Moore, 10 Conn. 13. 7l8 THE LAW OF EVIDENCE the testimony of a ]iarty to the suit tends to de- grade the character of a witness of ^he adverse party, and thus impeach his credibiHty, testi- mony is admissible to sustain the witness im- peached.'^^ But attacks by counsel of the ad- verse party on the veracity of witness do not constitute a sufficient basis for the introduction of sustaining testimony.^^ Where, the impeaching testimony consists of inconsistent statements made by the witness out of court, some courts hold that sustaining testi- mony of good character is admissible,''* while other courts hold the contrary.''* Moreover, in such case, some co.urts hold that the witness may be sustained by showing prior statements made by him out of t:ourt consistent with those made by him on the stand,''" while other courts hold the contrary.''® Upon this point the courts are in hopeless conflict. The latter view seems to be supported by the weight of authority. "We find the decided weight of authority to be, that pr.oof 71. State V. Speritus, 191 Mo. 24, 90 S. W. R. 459. 72. Ricks V. State, 19 Tex. App. 308. 73. Tonns v. State, 111 Ala. i;,Stratton v. State, 45 Ind. 468; Bcrryman v. Cox, 73 Mo. App. 67. 74. State v. Ri'ce, 49 S. C. 4^8, 41 Am. St. Rep. 816, 27 S.- E. R. 422; Webb,v. State, 29 Ohio St. 351; Russell v.VCoffin, 8 Pick. (Mass.) 143. 75. State v. Grant, 79 Mo. 113, 49 Am. Rep. 218; Hinshaw v. State, 147 Ind. 334. 47 N. E. R. 157; Wallace v. Grizzard, 114 N. C. 488, 19 S. E. R. 760. 76. McKelton v. State, 86 Ala. 594, 6 So. R. 301; State v. Vincent, 24 la. 570, 95 Am. Dec. 753; Dufresne v. Wise,- 46 Wis. 290, 1 N. W. R. 59. EXAMINATION OF WITNESSES 7I9 of declarations made by a witness out of court, in corroboration of testimony given by him on ' the trial of the cause, is, as a general rule, inad- missible, even after the witness has been im- peached or discredited, and we are satisfied with the correctness of the rule."'''^ § 103. Scope of sustaining testimony. — The scope of admissibility of sustaining testimony, where a proper basis exists for its introduction,' is rather broad. It has, however, limitations. Sustaining testimony is admissible to show the good reputation of the witness for truth and veracity,''® and also to show his gdod character generally.''® Even particular facts may be shown to sustain the witness. ®° And testimony is ad- missible to show that he has reformed.*"^ The personal opinion of a sustaining witi-»ess, based upon his own personal knowledge®^ of the witness impeached, or on dealings*^ with him, is inadmissible. Testimony by a svi^staining witness that he has never, heard anything against the witness im- 77. Gates v. The People, 14 111. 434. 78. Helton v. State, (Tex. Cr. App. 1909), 125 S. W. R. 21. 79. Tilley v. State, 167 Ala. 107, 52 So. R. 732 ; State v. Wood- worth, 65 la. 141, 21 N. W. R. 490 ; Barnwell, Hannegan, 105 Gja. 396,31 S. E. R. 116. 80. Gleason v. Williams, Tapp. (Ohio) 174. 81. Carter v. Com. (Ky., 1890), 13 S. W. R. 921; Central R., , etc., Co. V. Dtodd, 83 Ga. 507, 10 S. E. R. 206. 82. Lee v. Andrews, 151 Mich. S, 114 N. W. R. 672. 83. Jackson v. State, 106 Ala. 12, 17 So. R. 333. \ 720 THE LAW OF EVIDENCE peached is admissible, provided the circum- stances show thit probably he would have heard or known of his bad character had it existed.^* § 104. Personal opinion of sustaining witness based upon general reputation.— As previously- stated, an impeaching witness, after testifying to the general reputation of a witness sought to be impeached, may state whether or not, based upon that general reputation, he would believe him on oath. So a sustaining witness, after testi- fying to the general reputation of a witness sought to be impeached, may state whether or not, based upon that general reputation, he would believe him on oath.®^_ In both cases,, however, the opinion must be based upon the general reputation of the witness sought to be impeached.*® ' ( 84. Spencer v. State, 132 Wis. 509, 112 N. W. R. 462, 122 Am. St. Rep. 989, 13 Ann. Cas. 969; State v. Nelson, 58 Ta. 208, 12 N. W. R. 253 ; State v. Lambert,; 104 Me. 394, 71 Atl. R. 1092, 15 Ann. Gas. lOSS. 85. Doner v. People, 92 111. App. 43. 86. Doner v. People, supra. IMDEX , ■ Fage ABBREVIATIONS (Judicial notice) 7 ABSENCE OF SUBSCRIBING WITNESSES 334, 335 ACCOMPLICES 563-570. definition, competency, etc 56?-566 participation to entrap 666, 567 credibility 667-569 wilful participation essential , 1 570 ACCdMMODATION PAPER (alter3,tion)). 371, 372 ACCOUNT-BOOK ENTRIES 146-158 historical development of rule in England 147 I English statute 1609 , 147 services or goods sold and delivered 148 historical development of rule in United States 148 books kept by tradesman or clerk 148 extended to professional services 149 collateral facts ,: 149, 150 entries original , 150, 151 personal knowledge of sales 151 reasonably contemporaneous / 152 not admi^ible in suit between strangers 153 amount liinited 153 mode of Verification 1 154 more satisf actqry testi^mony obtainable 155 alterations, erasures, etc 156 memoranda mutilated 156 single entry i 156 entries in separate book. . . , .' , 157 when ledger admissible. 157 to refresh memory. ' . iJ58 ACTS OF CONGRESS (judicial notice) 2 ADVERSE USER (presumption) . . . ; 17 ADMINISTRATOR (alteration of document) 563, 564 ADMISSIONS 35-43 classification 35 self-serving 36 assignor, prior owner, bona fide purchaser ^ .36, 37 agent, partner. Joint owner, etc 37, 38 trustee, tort feasor, etc , 39 husbEind or wife '. 40 in presence of party , 40, 41 parol evidence rule not applicable . , , 42, 43 compromise or duress 43 authorship ( : 241 ADULTER? (privil. com.) : 605 722 THE LAW OF EVIDENCE Page AFFIRMATION (in lieu of oath) 531, 626 AGENTS '. 20, 184 AGE (pedigree) 117; (document) 131, 135 AGAINST INTEREST (declar.) 136-146 ALIASES . 628, 629 ALTERATIONS (account-books) 156 ALTERATION OF DOCUMENTS. 352-387 materiality of alteration . .| 352-362 by executor or administrator 363, 384 by special agent 364 by thief 364 by co-obligor 365 by public officer 365, 366 filling in blanks : 366, 367 agent exceeds authority 367 sealed instruments 367, 368 bona flde holders 368 alteration not prejudicial td obligor. 368, 369 negotiable instruments 369, 370 accommodation paper ; .371, 372 sureties ) 372 fraudulent intent 372 action on original consideration 372, 376 executory and executed documents 372-374 alteration of deed, mortgage, etc 374-376 question of intfent 376 note given in absolute payment 376 admissibility of altered document 376, 377 recovery of money paid on altered document 377-399 two important exceptions 378, 379 effect of ratification 379, 380 presumptions and burden of proof 380-384 decisions in hopeless conflict 380-383 six different views 380-383 alteration of will 384-386 alteration in pencil 386 province of court and Jury 386, 387 ancient documents 156 AMBASSADORS (exemption) 642 AMBIGUITIES . .480-485 ANCIENT DOCUMENTS 131-136 requisites of admissibility 131, 132 reason for rule 132 meaning of "proper custody" 132 acts of enjoyment not essential : 133 suspicious .circumstances 133 erasures and interlineations 134 immaterial alterations 134 INDEX 723 ANCIENT DOCUMENTS— Continued. Page mode of determining age of document 135 scope of rule 135 ANALOGOUS PROCEEDINGS (deiAurrer to evid.) . ' 50 ANIMALS (iiabits) 61, 63; (pedigree).....".... 119 ANSWERS CONCLUSIVE (witness) 681, 682, 688 ANTE LITEM MOTAM : 113, 123 ANTE-TBSTIMENTARY DECLARATIONS 173 ANTICIPATING THE DEFENCE../ 686 APPLIANCES USED BY OTHERS (relevancy) 58 APPARENT EXCEPTIONS TO RULE AGAINST HEAR- SAY J. 1 97-99 ARBITRATORS (competency) 582, 583 ARBITRATION PROCEEDINGS 103 ARGUMENTATIVE QUESTIONS 686 ARTISTS (opinion) ._ 219 ARTIFICE (to obtain confession) '. 87 ASSIGNORS (competency) ': 557 ASSUMING PACTS NOT IN ISSUE 586 ATHEISTS (competency) 632 ATTORNEYS (competency) 570, 571 (privileged communications) 584-599 ATTEMPT TO EVADE ARREST (admission) - 43 ATTESTING WITNESS DEAD 338 ATTESTATION OB' JUDICIAL RECORD 315, 317 AUTOPSY OF BODY, OP PATIENT 607, 608 BAILEES (burden of proof) 31,32 BANKRUPT (declarations) 187 BEST EVIDENCE RULE. . . : 388-431 interpretation of rule ~ 388 origin, importance, historical development and applica- tion of rule 389, 398 chattels . 398-490 cases where secondary evidence adnjiissible 401, 402 document lost or destroyed 402, 405, 415 original in hands of adversary 405, 406 notice to produce 406, 407 reasons for notice to produce 407, 408 original in hands, of third party 408 outside of jurisdiction of court 408, 409, 417, 419 extent of notice 40«, 410 'document privileged 411 < original inadmissible 411, 412 executed in duplicate 412 pleadings give notice to produce 412 document not primary evidence 414, 415 possession acquired wrongfully 415 document voluntarily destroj^ed, 415, 416 724 THE LAW OF EVIDENCE BEST EVIDENCE RULE— Continued. Page in possession of another court 417 effect of non-productlon^of original 419, 420 subpoena duces tecum 420 document recorded ..:... 420 degrees of secondary evidence '. 421-v424 letter-press epples , 422 examined copies ./ 423 document on record. ; 424 application of rule to telegrams '. 424-428 application of rule to telephonic communications. . ..i42S- 430 presumption and burden of proof 430-431 proof of handwriting. . . , 238 BIAS (proof of) .r^_ 714 BLOODHOUNDS (experiments) ....293, 295 BLOODSTAINS (opinion) 216 BONA FIDE HOLDERS (alteration) . , 368 BOUNDARIES 124 BREACH OF CONTRACT (opinion) 211 BURDEN OF PROOF 24-33 , double sense 24 upon whoin it rests 24 facts known by one party . 25 insanity a defence 26-28 negligence 28 exceptions to rule. 28 common carriers 29-31 bailees 31, 32 innkeepers i 32 statute of limitations '. , 33 fraud 1 33 quo warranto proceedings 34 deftiurrer to evidence ' 50 BYSTANDERS (telephonic communication) 430 CANCELLATION (parol evidence) Sll CAREFULNESS '77 CASH ENTRIES (account-books) 153 CAUSE OF INJURY 167 CBbTIFIED COPIES 346, 424 CESTUI TRUST ^ 544 CHARACTER , 64-83 definition 64 character versus reputation 64 rule in civil cases 64 reason for the rule j^ 64 limitation of the rule , 65 exceptions to the rule. 65 action for criminal conversation . . . , '. 66 INDEX 725 CIIABACTER— Continued. Page character testimony admissible in mitigation oi! damages 67 rule in bastardy cases -. -, 67 malicious prosecution case .'.... 67 financial and social standing of defendant '....68,69 financial and social standing of plaintiff 70 bad character of defendant in criminal case 70 flees from state ; in trouble before 70, 71 violent character of deceased 71 good character of defendant , 71 chastity of woman on trial for murder 72 limitation of character testimony 72 chastity of prosecutrix in seduction case 72 mode of proving character 73 mode of eliciting personal opinion 73 scope of character testimony 74 trait of being a. law-abiding citizen 74 trait of being a violent person 75 trait of chastity 75 trait of honesty , 76 trait of kindliness 76 trait of veracity. 76 trait of carefulness 77 negative facis to prove good character 78 proof of particular facts 78, 79 ordinarily inadmissible . . .' , 78, 79 admissible in rape, seduction, etc., cases 79 character testimony generally inadmissible in actions for fraud ... 80, 81 weight of character evidence ' 82, 83 CHARTS 127 CHASTITY T 72, 75 CHEMISTS (opinion) 231, 233 ' CHILDREN (competency) 528, 529 CHURCH RECORDS 129, 348 CLERICAL. ERRORS (parol evidence) 497, 498 CO-OBLIGORS (alteration) 365 COERCION OF HUSBAND (presumption) , 16 COLLATERAL MATTERS 453, 593, 606 COMMJIRCIAL AGENCIES (ratings) 348 COMMON LAW (mode of proof) 310, 311 COMMON CARRIERS (burden of proof) 29, 31 COMPARISON (handwriting) .239-258 COMPETENCY OF WITNESSES 513-583 witnesses incompetent at common law 514 husband and wife 514-524 lunatics and idiots. 524, 525 deaf and dumb persons... 631, 526 726 THE LAW OF EVIDENCE COMPETENCY OF WITNESSES— Continued. Page drunken persons 526, 527 imbeciles 528 children 528, 529, 633-655 persons other than Caucasian 529 irrelegious persons 530 atheists 532 persons convicted of crime 532-538 meaning of infamous crimes 532 meaning of crimen falsi 532, 533 conviction in sister state 534 impeaching credibility .- 535 mode of proving conviction 535, 536 pardon granted 536 citizenship restored 536 sentence served out 537 conviction proper to discredit witness 538 party to the record 538-541 statutory modifications 541 party having pecuniary, interest 541, 54? illustrations .'^. 541, 547 actions against executors or guardians .,.547-563 guardian and ward 549 claim of dovfer. - 550 probate of will 550 damages for causing death 560 subscribing witnesses beneficiaries 550, 551 competency of widow 550 competency of heir 551 assignors, grantors and mortgagors 557 parties to negotiable instruments 557 spouse and third party 557 husband' for wife's services 657 parent for child's services ' 567 surviving party to contract, 558 interest adverse to that of decedent 558 both parties deceased 559 donor and donee 559 wife, heir and beneficiaries 55^, 560 principal and agent 561 parties usually protected 561, 563 . accomplices 663-570 .iointly indicted 664 participate to entrap . . 666 credibility of accomplices 567-570 rule of criminal practice 668 decisions not harmonious 567, 568 illustrations 567-570 INDEX ■ ' 727 COMPETENCY OF WITNESSES— Continued. Page attorneys 570, 671 .ludges 571-573 grand Jurors .,. .573-575 petit jurors .575-^82 arbitrators . . . . ^ 582-583 COMPETENCY OF ACCOMPLICES 563-567 COMPROMISE (admissions) ^. 43 COMPULSORY PROCESS ~. 637, 638 COMPULSORY ATTENDANCE (witness) 636 COMPULSORY EXHIBITION (real evidence) 271-281 CONFESSIONS '. 84-96 requisites o£ admissibility 84, 85 inducement 86-90 criminating statement of facts , 90 discovery of facts resulting from involuntary confession. 90,91 , other parties implicated 91 accused ii;itoxic^ted or, asleep ; 91 agreement to turn state's evidence 92 confessions of other crimes 92,93 oral or in writing 93 promise by private detective 93 promise communicated Indirectly 93 Gompelling accused to do' incrlmlnatipg acts 94 , presumption and burden of proof 94, 95 on whom confession binding 95 confession of third party inadmissible 95 functions of court and jury 95 weight of confessions 96 CONFIDENTIAL REPORTS 128 CONJECTURAL TESTIMONY 52 CONSIDERATION (parol evidence) 498, 502 CONTENTS OP LOST WILL. . ! 172 CONTEMPORANEOUS STATEMENTS 16fe CONTRIBUTORY NEGLIGENCE OF CHILD (presumption) 19 CONVICTION OF CRIME (competency) , .532-538 CORROBORATIVE EVIDENCE (accomplices) .' 569 COURTS AND SEALS (judicial notice) 5 CRIMEN FALSI 532, 533 CRIMINAL CONVERSATION (character) 66 CRIMINAL INTENT (mixed question) 47 CROSS-EXAMINATION OF WITNESSES 671-690 scope 671, 673 answers tend to disgrace witness ; 674 accused takes stand 674 collateral matters 675-676 ' irrelevant questions 677 inconsistent statements in writing 677 728 THE LAW OF EVIDENCE CROSS-EXAMINATION OF WITNESSB— Continued. Page collateral specific misconduct 677-679 collateral matter o/i direct examination 679, 680 voluntary statements on direct examination 680 witness called by court 680 preliminary examination by court 681 when answers conclusive 681, 682 matters of veracity and bias 682 no opportunity to cross-examine. . ., ■ 682 self-oontradiction '. 682, 683 witness sworn but do6s not testify 683, 684 iraportaijice of cross-examination 684, 685 dangerolis as it is powerful 685 leading questions allowable 686 as to bias, etc 715 CUSTOMS (parol evidence rule) ^ 460-473 ^definition 460, 461 custom and usage distinguished 461 application of parol evidence rule 461, 462 must be certain and uniform '. 462 illustration 462, 463 must be continued 463 must be reasonable i 464 illustrations 464-467 must be known 467, 468 must be consistent 468 contradictory customs void 468 illustrations 468-471 must be compulsory 471, 472 must be general or universal 472, 473 DAMAGES (opinion) 208-213 DEATH (presumption from seven years' absence) 16 DEAF AND DUMB PERSONS (competency) 526, 527 DECLARATIONS OP BYSTANDERS 183 DECLARATIONS OP AGENTS 184 DECLARATIONS OP PROSECUTRIX IN RAPE CASE 185 DECLARATIONS UNDER OATH IN FORMER TRIAL. .101rl03 testimony given at former trial 101' requisi^ies of admissibility 101 witness dead, etc 101 opportunity to cross-examine l6l questions in issue substantially same 101 substantially same parties 101,, 102 mode of proving testimony 102 depositions , 102 opportunity to cross-examine deponents, v 103 rule extended to preliminary and arbitration proceedings 103 INDEX , 729 Page' DECLARATIONS ,RELATING TO PEDIGREE .112-121 term pedigree used in broad sense 112 basis of admissibility li2 form immaterial 112 requisites ; .113, 114 relatlonsliip proved aliunde 114 two branches of same family 114, 115 illegitimacy 115 ancestor and heir (statutes) 115 husband's declaration that wife's parents unmarried .... 115 mother's declaration that child illegitimate 115, 116 family reputation 116 declarant ignorant of controversy 116 declaration based upon hearsay 117 declaration as to declarant's age 117 particular facts 117 question of pedigree in issue 118 facts of infancy, insanity, death 119 pedigree of animals > 119 entries informal 120 inscriptions 1 121 weak evidence 121 DECLARATIONS RELATING TO MATTERS OP PUBLIC AND GENERAL RIGHTS 121-128 of wider application in England 121 meaning of the term 122 pecuniary interest involved 122 public and genei'al rights distinguished 122 basis 1 of admissibility 122 requisites of admissibility 123 community reputation essential 123 must have been made ante litem motam 123 questions involved 124 boundaries, rights of common, etc J 124 illustrations 124 rule as to private boundaries 125 American rule liberal 125- reasons for liberal American rule 125 particular facts provable 126 declarations made by a surveyor 127 . public maps and charts admissible 127 DECLARATIONS AGAINST INTEREST BY PERSONS SINCE DECEASED ' 136-146 requisites different from those of admissions 136 rule stated 136 adverse interest pecuniary or. proprietary 137 illustrations 137 interest partly self-serving 137 73P THE LAW OF EVIDENCE DECLARATIONS— Continued. Page declaration prima facie against interest 138 declaration of husband favorable to wife 139 declaration of beneficiary under a will 139 adverse interest actual 139 declaration of prospective heir 139 declaration which purports criminal liability 140 declarations of partners ; 140 illustrations 141 declarations of guardian or adopted parent 141 declarations of policy holders - T : 142 statement that declarant a negro 142 death of declarant essential 143 declaration admissible to prove collateral facts 143 may be post litem motam 144 may be oral or in writing 144 personal knowledge of declarant 145 DECLARATIONS (Entries) IN REGULAR COURSE OF BUSINESS 158-163 basis of admissibility 158 must be made in due course of business 159 within reasonable time after transaction 159 English rule in regard to duty 160 not the American rule 160 entrant must be dead 161 modern American rule more liberal ' 161 personal knowledge of transaction 162 English rule extends to oral statements 162 American ' rule contra 162, 163 DECLARATIONS RELATING TO THE PHYSICAL OR MENTAL CONDITION OF DECLARANT, OR TO HIS INTENTION 163-173 spontaneous exclamations and descriptive statements distinguished . . .'. 163 spontaneous exclamations always admissible 163 conflict as to descriptive statements 164 tendency is to restrict scope of admissibility 164 basis of admissibility 165 case of Aveson v. Kinnaird, et al ". 165 statements contemporaneous with pain 165 expert 'opinion admissible 166 testimony of cause of injury inadmissible 167 declarations by physician inadmissible 167 some important discriminations 168 declarations of Intention, motive, etc., 168 decisions conflicting 169 the true rule 169 declarations relating to wills 170 INDEX 731 DECLARATIONS— Coptinued. Page application of principles involved 170 mental strength and undue influence ^. .. 170 fraud or duress involved 171 revocation of will In issue 172 alteration of will in issue , 172 ' declarations must form part of res gestae 172 contents of lost will in issue 172 ante-testamentary declarations admissible 173 posl-testamentary declarations admissible to corroborate 173 ruling by U. S. Supreme Court erroneous 173 DBCLAHATIONS RELATING TO OR FORMING PART OF RES GESTAE 174-191 meaning and origin of term "res gestae" 174 vague use of term ; 174 requisites 175 verbal acts 175 Illustrations 176, 177 letters in Harry K. Thaw murder trial 177 statements material to principal facts 177 ' illustrations I 178 mental acts, state of mind ' 179 spontaneous utterances 180 narratives of past occurrences 180 illustrations 180-182 declarations of bystanders 183 declarations of agents 184 declarations of prosecutrix in rape case 185 various theories of admissibility 186 details of complaint in rape case 186 res gestae doctrine in banliruptcy cases 187 acts , themselves must be legally relevant 187 illustrations : 188-191 DEEDS (alteration), 374 (parol evidence) .^ 444, 448 DEMEANOR (relevancy) ". 58 DEMURRERS TO EVIDENCE 49-50 definition . ■: 49 joinder in demurrer ' 49 effect of demurrer to evidence 49 rule where evidence Is conflicting ^. 50 burden of proof 50 effect at common law of judgment on the demurrer 50 other analogous proceedings 50 DEGREES OF SECONDARY EVIDENCE 421-424 DENTISTS (privll. com.) 610 DEPOSITIONS 102 DETAILS OF COMPLAINT IN RAPE CASE 186 732 THE LAW OF EVIDENCE Page DEVISEES 597 DOCUMENTS— MODE OF PROOF 299-352 classification 299 public documents 299-300 statutes and ordinances 300-302 judgments, docket entries, executions, etc :. 302-305 court records 305-306 statutes of sister states 307-309 presumptions as to enactment 309-310 common law . ; 310-311 foreign statutes 311 printed volumes of sister states 311 legislative journals 312, 313 formalities prescribed by congress 313-318 documents not appertaining to a court 318, 320 other modes of proof allowable 321 state records in federal courts 321 foreign public records 321 congressional journals '. 321 public proclamations * ^ 321 contents of official registers 322-324 federal court records 324, 325 quasi-judicial records 325 attested documents 325-341 unattested documents : 341 corporations — organization, records, etc 341-347 ratings of commercial agencies 348 church records 348 tax records, etc 348, 349 penitentiary records , 349 records, of secret societies.. j 349 log-books 349, 350 ' I letters and telegrams 350-352 DONORS AND DONEES (competency) 569 DRUGGISTS (privil. com.) 610 DRUNKEN PERSONS (competency) '...526, 527 DURESS (admissions) 43-171 DYING DECLARATIONS 103-111 scope of admissibility 104 criminal oases 104 rule in Kansas in civil cases '. 104 requisites of admissibility 104 death of declarant 105 ' in extremis 105 all hope of living gone 105 mode of proving consciousness of impending death 106 two homicides from one act 106 declarations vague and indefinite 106 iNtiEx 733 DYING DECLARATIONS— Continued. , Page declaration of opinion i. .* 107 interval before , deatii y. 107 form of declaration 107, 108 . impeachment of declaration 108 burden of proof 108 function of court and jury 108, 109 weight of dying declarations 109 constitutionality of admitting dying declarations .... 109, 110 substance of declaration sufficient 110 declaration must relate to declaran1:'s own death 110, 111 competency of declarant Ill EAVESDROPPERS (prlvil. com.) 69S ENGINEERS (opinion) 229-231 ENTRAPMENT 566 EXAMINATION OF WITNESSES 624-720 direction and control of court 624 few positive rules 624 object of examination 624 who may examine 625 three chief stages ■ 625 testimony yiva voce 625, 626 oath or affirn\ation : 626 witness testifies without l^eing sworn 626, 627 modes of binding conscience .627-629 several aliases '. 628, 629 form of oath apd mode of administering 629, 630 1 interpreters 631, 632 deaf and dumb persons 631 atheists • 632 ' purpose of oath 632, 633 children 633, 634 insane persons ' 636 compulsory ^attendance . . ._. ■ 636 distances prescribed by statute 637 ' right of accused to compulsory process 637, 638 production of documents .' ' 638 witnesses priyileged from arrest 639, 640 compelled to testify 641 officials not exempt. 642 ambassadors and consuls exempt 642 obligations of witness \ 642, 643* limiting number of witnesses 644 expenses 644 seiiuestration of witnesses 645-647 EXAMINATION IN CHIEF. |^ 647-670 control of presiding judge ,. ,648, 649 man:ier and scope of examination 648 734 THE LAW OF EVIDENCE EXAMINATION IN CHIEF— Continued. Page Illustrations , 648-650 leading questions 650-666 other grounds of oMeotion 657, 658 irresponsive answers 658-660 impressions or beliefs 661, 662 refreshing memory , 662-665 adopting a past recoUeotion 663-665 right of opposing counsel to inspect memorandum . . 655, 666 when memorandum admissible 666, 667 nature of memorandum 668, 669 'counsel not to assume facts 669, 670 EXECUTORS OR GUARDIANS (actions against) . .547, 563, 566 EXPERT OPINION 166, 239 EXPERT WITNESS (qualiflcations) 244, 245 EXPERIMENTS 281-298 discretion of court 281 when allowable 281, 282 in presence of court 282 frequent use in personal injury cases 282 illustrations ,.i 282-285 to corroborate other evidence 285 physical acts in presence of jury 285, 286 experiments by jury out of court 286-288 substantially similar conditions 288 illustrations '. 289-291 to explain or corroborate opinion evidence 291, 292 ' experiments by non-experts ..; 292, 293 experiments with bloodhounds 293-295 miscellaneous illustrations '. 295-298 FARMERS (opinion) .' 221-223 FEDERAL, COURT RECORDS (mode of proof) 324,' 325 FILLING BLANKS '. 366, 367 FINANCIAL STANDING 59, 68-70 FIRES FROM ENGINES 62 FORMER TRIAL (testimony) 101, 103 FRAUD .21, 33, 171, 489 FUNCTION OF COURT AND JURX 47 GARDENERS (opinion) 221-223 GENERAL RIGHTS (declarations) 121-128 GENERAL REPUTATION 99 GOODS SOLD AND DELIVERED (account-books) 148 GOVERNMENTAL GAZETTES 130 GRAND JURORS (competency) 573-575 •For balance of Examination of Witnesses see Cross-Examina- tion. Redirect Examination, Jlecross-Examination and Im- ' 1 peachment of Witnesses. INDEX 735 Page GUARDIAN AND WARD (competency) 549 HABITS OF ANIMALS 61 HANDWRITING 238-258 best evidence rule not applicable 238 ancient documents 239 opinions of experts and non-experts 239 comparison of writings. 239 ■ qualifications onent of will may waive privilege 610 parent may waive privilege of Infant patient 610 merely taking the stand no waiver 610 extension of privilege to nurses 610 not'extended to veterinary surgeons, dentists or drug clerks 610 Between Spiritual Adviser and Penitent privileged by statute 611 scope of the statutes -. 611 privilege extends to both parties 611 usually restricted to matters of church discipline .... 611 for benefit of penitent 612 penitent only may waive 612 Political- State Secrets and Matters Pertaining to Penal Justice privileged at common law 612 basis of rule public policy 612 rule criticised 612, 613 heads of departments and also subordinate officers . 614 illustrations 614 parliamentary proceedings .' 614 executive sessioris of U. S. senate ■ 614 by whom question is determined 615 ■conflicting' views .■ 615 reasons assigned for each view ^ 615, 616 matters pertaining to penal justice 616, 617 informers and channels, of communication privileged 616 744 THE LAW OF EVIDENCE PRIVILEGED COMMUNICATIONS— Continued. Page basis of rule public policy 616 scope of privilege 61T Social — Between Husband and Wife 617-62S privileged at common law 61T husband and wife incompetent witnesses 61T enabling statutes 617, 618 only confidences protected 619- illustrations 619-621 third party overhears 621, 622^ conversations in presence of children, etc 622; one spouse acts as agent of the other spouse 622 Judicial — Judges 571-573, 623- grand jurors 573-575 petit jurors 575-585 PRODUCTION OF DOCUMENTS 638 PROMISSORY NOTES (burden of proof) 32 PROOF OF OTHER CRIMBS 55, 56 PROPER CUSTODY (ancient documents) 132 PROSECUTRIX IN RAPE CASE (complaint)...! 185 PUBLIC DOCUMENTS (mode of proof) 299, 30O PUBLIC LAWS (judicial notice) , . .'. 214 PUBLIC OFFICER (alteration of document) 365, 366 PUBLIC PROCLAMATIONS (mode of proof) 321 PUBLIC RECORDS AND DOCUMENTS 128-13{ ordinarily admissible 128 confidential report.s • 128 scope of admissibility 12S judicial records 129 legislative journals 129 state papers 129- municipal records 129- church records 129 governmental gazettes 130- unofficial books ISO- accredited historical books 130 PUBLIC RIGHTS (declarations) 121-128. QUASI-JUDICIAL RECORDS (mode of proof) 325 QUO WARRANTO PROCEEDINGS (burdet) of proof) 34 RAILROAD MEN (opinion) 224-227 RATIFICATION (alteration of document) 379. 380' REAL EVIDENCE. INSPECTION BY COURT AND JURY 259-281 three channels of communication 25^ origin ancient 26Ch scope broad . . . ^ , 260-262 INDEX 745 REAL EVIDENCE— Continued. Page indecent or repulsive testimony 263, 264 voluntary exhibition of parts of the body 264 objections to real evidence 264 personal injury cases 264, 265 identity, resemblance, etc 265, 266 age, race, color, sex, etc 267, 268 photographs 268-271 compulsory exhibition of injured parts of the body 272-275 mode of making examination 275 mode of enforcing the order 275, 276 matters pertaining to examination 276-278 compulsory examination of accused 278, 279 compulsory examination of complaining witness 279 compulsory examination of the person in divorce -cases 279-281 REAL, EXCEPTIONS TO RULE AGAINST HEARSAY. .100-191 REBUT AN EQUITY (parol evidence) 502-503 RECEIPTS (parol evidence) 494-496 RECORDED DOCUMENTS (best evidence) 420 RECROSS-EXAMINATION 696, 697 REDIRECT EXAMINATION 690-696 restricted to scope of cross-examination 690 may explain and give reason 690 new matter excluded 690 conversations and transactions 691, 692 new matter excluded 692 witness discredited on cross-examination 692 when irrelevant testimony admissible . . .' 693 repetition of testimony 693, 694 change of conduct and reasons therefor 694 identification of document 694, 695 discretion of trial court 695, 696 REFORMATION (parol evidence) 511 REGULAR COURSE OF BUSINESS (declarations) 158-163 RELEASES (parol evidence) 496, 497 RELEVANCY OF TESTIMONY » 51-63 meaning of term 51 testimony must be legally relevant 51 not too conjectural nor too remote 52 similar transactions with others 53 similar acts injurious to others 53 remedying defects after injury 54 others injured by same cause 54 proof of other crimes 55 other crimes integral parts of same transaction 56 sales of similar land in vicinity 56 expert .opinion of value of land 57 other acts which refute accident 57 746 THE LAW OF EVIDENCE RELEVANCY OF TESTIMONT— Continued. Page methods and appliances used by others 58 business hazardous 58 preparation, motive, threats, etc 58 demeanor relevant .' 58 statements part of res gestae 59 financial standing of parties relevant in some cases . . ; . 59 similar accidents under similar conditions 59 testimony that many others escaped injury : 60 customs and usages of others 60 Habits of animals 61 habitual negligence, imperfect engines, fires 62 discharge of servant. 62 owner has knowledge of animal's vicious propensities . . 63 good faith of defendant 63 RELIGIOUS BELIEF (contipetency) 530 REPULSIVE TESTIMONY (real evidence)..." 263 REPUTATION (character) 64-83 RES GESTAE .172, 174-191 RESERVATION (parol evidence) 508, 509 RESULTING TRUST (presumption) 21 SALES OF SIMILAR LAND 56 SANITY (presumption) 22 (opinion) . . : 196 SCIENCE AND ART (Judicial notice) 9 SEALED INSTRUMENTS .........' 505, 506 SEARCH FOR BEST EVIDENCE 402 SECONDARY EVIDENCE 382 SECRET SOCIETY RECORDS 549 SEDUCTION (character) 72 SEQUESTRATION (witnesses) 645-647 SERVICES OF PHYSICIAN (privil. com.) 608 SET-OFF (parol evid.) 504 SIMILAR TRANSACTIONS "WITH OTHERS 53 SIMILIAR ACTS INJURIOUS TO OTHERS 53 SIMILIAR ACCIDENTS UNDER SIMILAR CONDITIONS.. 59 SPECIFIC PERFORMANCE (parol evidence) 511 SPONTANEOUS UTTERANCES 163, 180 STATE PAPERS ' 129 STATUTES mode of proof 300-311 state statutes 300 federal statutes 300, 301 statutes of sister states 307-311 statutes of foreign countries 311 printed volumes of statutes 311 STATUTE OP FRAUDS ..506, 508 STATUTE OF LIMITATIONS (burden of proof) 33 INDEX 747 Page SUBPOENA DUCES TECUM 420 SUBSCRIBING WITNESSES BENEFICIARIES (compe- tency) 550, 598 SUPPORT AN EQUITY (parol evidence) 503, 504 SURROUNDIISfG CONDITIONS (parol evidence) 478-480 SURETIES (alteration of instrument) 372 SURVEYORS 127 SURVIVORSHIP (presumptions) 23 TAX RECORDS, etc 348, 349 TELEGRAMS : 352, 424, 428 TELEPHONIC COMMUNICATIONS 428-430 TERRITORIAL DIVISIONS (judicial notice) 5 TEST OF ADMISSIBILITY OF OPINION 238 TESTIMONIAL ASSERTIONS (hearsay rule) 97 THIEF (alteration of document) 364 THREAT (privil. com.)...., 597 TORT FEASOR (admissions) 39 TRADESMEN (opinion) 217 TRAITS OF CHARACTER 74-77 UNATTESTED DOCUMENTS 341 UNDUE INFLUENCE 170 UNOFFICIAL BOOKS 130 VAGUE DYING DECLARATIONS 106 VALUES (opinion) . , 206-208 VALUE OP LAND (expert opinion) 57 VERACITY (cross-examination) 715 VERBAL ACTS 175 VERIFICATION (account-books) ". 154 VIOLENT CHARACTER OF DECEASED 71 VOLUNTARILY DESTROYS DOCUMENTS 415, 416 WAIVER OF PRIVILEGE 609 WIDOW (competency) , 550 WIFE (competency) 559 WIFE'S AUTHORITY (presumption) 18 WILLS (parol evidence) 487, 488 (privil. com.) 597 WITHDRAWAL OF -JURY 44 WITNESSES (competency) 313-583 I