UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY TRIAL EVIDENCE. THE RULES OF EVIDENCE APPLICABLE ON THE TRIAL (INCLUDING BOTH CAUSES OF ACTION AND DEFENSES) AT COMMON LAW, IN EQUITY, UNDER THE CODES OF PROCEDURE. BY AUSTIN ABBOTT. OF THE NEW YORK BAH. 11012 NEW YORK: BAKER, VOORHIS & CO., PUBLISHERS, 60 NASSAU STREET. 1882. Entered, according to Act of Congress, in the year eighteen hundred and eighty, by AUSTIN ABBOTT, In the Office of the Librarian of Congress at Washington. Sixth Impression. PEEFACE. i Iff this volume I assume that the reader is familiar with the general principles of the Law of Evidence, and is concerned with their proper application in actual practice. I have accordingly sought to state the ^ most useful, convenient, and trustworthy rules as to the mode of proof of each material fact in all the great classes of actions and defenses ; and to illustrate and support these rules by a selection of authorities drawn from the decisions of all the American and English courts, and from the works of the best text-writers. Recent changes in procedure, accompanying or resulting from the Code practice, have had far-reaching consequences in respect to the mode of dealing with the subject of evidence. The abolition of formal distinctions affecting actions and suits, the new methods of pleading, the abrogation of former disqualifications of witnesses, and the advance in assimilating the practice in the United States courts to that in the State courts, have silently effected many radical changes in the mode of proof, and have had a wide and powerful influence upon the practical applica- tion of the general principles of evidence. In consequence of these modifications of the law, most of the questions as to competency of wit- nesses and the effect of the pleadings, which formerly occupied so much attention, have dropped out of notice, and questions of the relevancy and competency of particular facts relating more or less directly to the issue, and of the weight and cogency of evidence, have been brought into new importance. Since the law has given to the trial courts in- creased freedom in the admission of evidence, the appellate courts justly use increased care in scrutinizing questions of evidence, that they may relieve against all substantial errors which transcend the limits of that freedom. And there has also been a general advance in the devel- opment of the rules by which appellate courts (in proper cases) re- weigh the evidence on which facts have been found in the trial courts. Hence discussions on qtiestions of evidence, in our appellate courts, are now more important and more frequent than ever before; and [iii] IV PREFACE. careful practitioners are more than ever accustomed to include in their preparation for trial, an examination of the authorities as to the mode in which, in the present condition of the law, the cause of action or defense should be proven. Each class of actions has its peculiar rules of proof. These are the result of experience, adapting the general principles discussed in the text-books to the exigencies of justice in each kind of litigation. It is not enough to know the general principles which are to be applied. It is necessary to know also how they are to be applied and limited in the particular action on trial. Such special rules, though less artificial and technical than formerly, have become, under the new procedure, more numerous and important than ever. On questions of evidence the conflict apparent among text-writers and decisions, often arises from supposing that general principles have similar application and effect in all classes of cases. The method here pursued aims to give, in suc- cessive chapters, under the title of each principal cause of action and defense, the characteristic rules now applied by our courts in that class of cases, together with an indication of the general principles on which these special rules rest, and by which they are to be extended or lim- ited, in new instances. The method chosen for the statement of these rules is that which seemed to promise the best practical assistance to counsel and to the court, in the trial of issues ; to the practitioner generally in preparing for trial and selecting witnesses ; and also to the pleader in framing issues. The order of topics pursued first disposes of questions connected with the character of Particular Classes of Parties, as likely to arise in actions of almost any kind, and then proceeds with Particular Causes of Action, taking first those in which the main proof is usually of facts raising an implied contract or legal duty ; followed by those involving writings unsealed, sealed, or of record ; then those turning on negli- gence or tort ; then those seeking specific relief, founded on either of these kinds of transactions ; and finally those which, in a greater degree, depend on statutes, &c. Defenses which are common to several classes of actions are not treated in connection with each cause of action, but in the third and last part of the volume. The arrangement under each subject requires the reader to analyze closely his cause of action or defense ; and thus warns him, in prepar- ing his proofs, not to overlook any element which the case may involve. He should remember that he is necessarily assumed to have already decided that his action will lie or his defense avail, and that whatever may here be said upon that point is subordinate and incidental to the PREFACE. V main object, viz., to aid him in proving or disproving whatever allega- tions in the pleading before him may be material, and to indicate the various phases of the subject under which the evidence adduced may or may not be admissible. The practitioner will find that such a close analysis of the probative facts of a cause of action or defense, is of the utmost value in giving him a mastery of the details of the case ; and the student will find it. equally useful in leading him to an under- standing of the law. If the rules I lay down are stated with somewhat more conciseness and certainty than is usual in law treatises, it is not because I have consciously deferred too much to the authority of reported cases, but because I believe that the main rules of proof now administered by our courts, are capable of clear and precise statement, upon authority which will usually be controlling at nisi prius. I have endeavored to present them thus in the text : rules that are doubtful or of secondary value, I have sought to indicate suitably in the notes. Discussion of the cases cited, and their relative authority, has there- fore been omitted ; my purpose being to cite those of importance and value, and to state concisely and with certainty the resulting rules ; and to cite cases of minor authority so far as they justly serve to extend, qualify, or apply the doctrine of the leading authorities : otherwise to omit them or refer to them as contra to the rule stated. In a work covering so extended a field, it would be impracticable to cite all the cases examined, and I have not sought to multiply but rather to sift and select authorities. Upon those questions on which the adjudications or statutes of dif- ferent States are at variance, I have stated the rule which I understand to prevail in New York, calling attention, however, to questions on which there is a serious general difference of opinion ; such, for instance, as the burden of proof as to contributory negligence, 1 the competency of admissions and declarations of an assignor to impair the claim of his assignee, 2 the effect of irregular indorsement, 3 and the like. In cases of minor importance it is generally assumed that the reader will notice any peculiar rule prevailing in his own jurisdiction. Discussion of general principles has been out of place, except rarely and in a limited degree, where it has seemed necessary, either to show how those principles are now administered in the American courts Pages 594-96. Pages 12, 13. Pages 436-40. VI PREFACE. somewhat differently than indicated in tho books, or to aid the reader to meet vexed and unsettled questions. In reviewing the work on which I have been so long engaged, and the preparation for which has so constantly connected itself with pro- fessional practice, I am not unconscious of imperfections and inequal- ities in its execution ; but to the kindly consideration of the profession I submit it, in the hope that it may often aid and seldom mislead. AUSTIN ABBOTT. TIMI-:S BUILDING, NEW YORK, May, 1880. TABLE OF CONTENTS, PART I. EVIDENCE AFFECTING PARTICULAR CLASSES OF PARTIES. CHAPTER I. ACTIONS BY AND AGAINST ASSIGNEES. PAGE Rules applicable to assignees. . . 1 Allegation of assignment material 1 Requisite proof of assignment. 2 Implied assignment 2 Statute of frauds 3 Presumptive evidence 3 Consideration 4 Gift 4 Object, when material 5 Best and secondary evidence. .. 5 Proof of execution 6 Delivery and acceptance 6 Assignment with schedules 6 Assignment by corporation. ... 6 Authority of officer or agent. ... 7 Parol evidence to vary a writing 7 Equities against the assignee.. . 8 Jiona fide purchaser 8 Notice to debtor 8 Assignment for purpose of suit. . 8 or as collateral security 9 PAGE 22. Assignees in insolvency 9 23. in bankruptcy 9 24. Purchaser from official assignee. 9 25. Assignees for benefit of creditors. 10 26. Testimony of assignor 10 27. Assignor's declarations not com- petent in favor of assignee ... 11 28. Their competency against as- signee 11 29. if made before assignor was owner 11 30. if made after he ceased to be owner 11 31. if made during l.is ownership 12 32. Preliminary question 13 33. Distinction between declarations and transactions. 13 34. Declarations admitted in case of conspiracy 14 35. Receipt, ears' absence in case of life estates 75 7. Seven years' rule in other cases. 75 8. Absence and inquiry 75 9. Rebutting the presumption 70 10. The time of presumed death. ... 77 11. The English rulo 77 12. The American rule 77 13. Survivorship in common casualty 78 II. MARRIAGE. 14. Burden of proof, and presump- tions 79 15. Direct evidence of marriage. ... 79 16. Certificate or registry 80 17. Indirect evidence of marriage.. 81 18. Cohabitation and repute 81 19. Cohabitation and declarations.. 82 20. Marriage after meretricious in- tercourse 82 21. Second marriage during absence. 83 22. Rebutting evidence of marriage. 84 23. Foreign law 85 III. ISSUE OR FAILURE OF ISSUE. 24. Burden of proof 85 25. Presumptions as to failure of issue 85 26. Escheat 86 27. Possibility of issue extinct 86 28. Registry of birth or baptism. ... 80 29. Consorting as a family 87 30. Direct testimony to age 87 81. Physician's testimony or account. 87 32. Legitimacy : Burden of proof and presumptions 88 33. Parents' testimony and declara- tions as to legitimacy 89 IV. HEARSAY AS TO FACTS OF FAMILY HIS- TORY (PEDIGREE). 34. Grounds of receiving it: and its weight 90 35. What facts are within the rule.. 90 36. By whose declarations such facts may be proved 91 37. Family records 92 38. Other written declarations 93 39. General family repute 94 40. Declarations made in view of con- troversy 95 41. Repute beyond the family Ac- quaintance Newspaper notice Insurance 95 42. Best and secondary evidence. ... 96 V. REGISTRY OF FACTS OF FAMILY HISTORY (PEDIGREE). 43. Registries authorized by law. ... 97 44. Registries not authorized by law 98 45. Best and secondary evidence. ... 99 46. Impeaching the registry 99 VI. JUDICIAL RECORDS SHOWING FACTS OF FAMILY HISTORY (PEDIGREE). 47. Letters of administration, t> 8. Value and damage 557 II. SPECIAL CLASSES OF BAILEES AND AGENTS. 9. Gratuitous bailments 657 10. Attorneys 657 11. Brokers 568 1 2. Collecting bankers 658 13. Factors 659 14. Forwarders 660 15. Hirers of chattels 660 16. Innkeepers 660 17. Pledgees 661 18. Tows 661 19. Warehousemen 662 20. Wharfingers; place-hire 662 III. ACTIONS AGAINST COMMON CARRIERS OF GOODS. 21. Defendant a common carrier. . . . 663 22. Delivery to carrier 6C3 23. Authority of receiving agent . . . 664 24. Implied contract 665 23. Address; instructions; "C. O. D." 565 26. Express contract 565 27. Authority to make special con- tract 666 28. Description of goods 666 29. Amount 666 30. Condition 666 31. Instructions: route: terminus.. 667 32. Stowage 668 33. Time : delay 668 34. Burden of proof as to loss, and cause of loss 669 35. Contract of connecting lines. . . . 670 36. Non-delivery 670 37. Negligence 671 88. Cause of injury 671 39. Theft or robbery 672 40. Conversion 672 41. Plaintiffs title 672 42. Oral evidence to explain or vary bill or receipt 673 43. Usage 673 44. Declarations of agents 678 45. Defenses : generally 673 46. contract for restricted liability 674 47. evidence of shipper's assent; the New York rule 674 48. the Illinois rule 675 49. fraud as to value 675 60. -. limited liability under the act of Congress.. 676 xxii TABLE OF CONTENTS. CHAPTER xxx. ACTIONS AGAINST BAILEES, AGENTS, &c. continued* PAGE 51. Carriers' delivery; Notice to con- signees 576 62. "Act of God"; Inevitable acci- dent 677 TV. ACTIONS AGAINST COMMON CARRIERS OF PASSENGERS AM> BAGGAGE. 63. Plaintiff a passenger 677 64. Express contract ; Ticket 678 FACE 65. Authority of agency 579 56. Baggage 679 67. loss or non-delivery 680 68. Negligence 680 69. Authority of servant 680 60. Damages 6bO 61. Defenses: Restrictions of liabil- ity; Extrinsic evidence to vary ticket 681 62. contributory negligence 681 CHAPTER XXXI. ACTIONS FOR NEGLIGENCE. I. GENERAL RULES. 1. Burden of proof 682 2. The pleading 683 8. Elements of direct proof 683 4. Degrees of negligence 688 6. Privity 583 6. The casualty aa evidence of neg- ligence 683 7. Other negligences 684 8. Time of existence of defect 585 9. Other defects 685 10. Incompetency 585 11. Reputation 685 1 2. Intemperance 685 13. Opinions of witnesses 686 14. Declarations and admissions gen- erally 687 15. Plaintiff's declarations 687 16. Defendant's admissions, declara- tions, and conduct 687 17. Admissions and declarations of servants, p. Dec. 152; M<--s v. Mr- Bivitt, 2 Abb. New ('as. 47. Formerly the mere purchase was evidence of intent. 3 Wend. 120. It is now only a necessary circumstance with others to show intent. See Bristol v. Dann, 12 Wend. 142; Williams v. Mathews, 3 Cow. 252. II Gilmore v. Bangs, 55 Ga. 403. 6 ACTIONS BY AND AGAINST ASSIGNEES. of plaintiffs interest in property is material under the issne, the written instrument of transfer under which he claims may be called for as the best evidence. 1 But a distinction is made in this rule, between a writing which is the vital instrument of transfer, such as a bill of sale, and a writing which is merely an incidental or collateral memorandum of a transfer made verbally, such as a bill of parcels stating price, and receipted. Where the former is shown to exist it must be produced ; but the latter is not primary evidence, and need not be produced. 2 11. Proof of Executionl\ The execution of a written assign- ment may be proved by having it acknowledged by the assignor, or proved by a subscribing witness, before an officer authorized to take acknowledgment and proof of deeds ; 8 and this may be done even after the action has been commenced, and at any time before the actual offer of the document in evidence. 4 Unless this is done, the assignment, whether under seal or not, 5 if attested by subscribing witness, must be proved by the witness or his hand- writing. 6 12. Delivery and Acceptance^ Delivery of a written assign- ment is presumed when the instrument is proved to have been executed by the assignor, and is actually produced by the plaintiff , at the trial ; 7 and affirmative proof of the acceptance of an as- signment which appears to be beneficial to the assignee, is not re- quired from the party propounding it, but the party impeaching it must disprove acceptance. 8 13. Assignment with Schedules.'] If plaintiff claims under a general assignment with a schedule of the articles transferred, general words in the assignment, with nothing in it to indicate that the schedule is to control, will pass the right of action, though it be omitted from the schedule ; and parol evidence that it was not intended to pass it, has been held incompetent as vary- ing the assignment. 9 But evidence that it was in fact inserted in the schedule by a designation partially false or inapplicable is competent. 10 14. Assignment by Corporation.'] If plaintiff claims as as- signee of a corporation, evidence of the existence of the corpora- tion is admissible without any allegation of that fact other than such as is implied in the mention of the corporate name in the 1 Epping v. Mockler, 55 Ga. 376. * Dunn v. Hewitt, 2 Den. 6S8. 8 N. Y. L. 1833, p. 3%, c. 271, 9. Add county clerk's certificate where required. 4 Holbrook v. N. J. Zinc Co. 57 N. Y. 616. 8 1 Greenl. Ev. 569 ; King v. Smith, 21 Barb. 158. 8 Page 605 of this vol., where the practice is stated. 1 Greenl. Ev. 569; Jones V. Underwood, 28 Barb. 481. 1 Story v. Bishop, 4 E. I). Smith, 423 ; North v. Turner, 9 Serg. e Owner J] The assignor's admissions and declarations, and even his formal written acknowl- edgment, made after he ceased to be owner, 5 are equally incom- petent against the assignee, unless the evidence connects the assignee with them ; and it makes no difference that that the assignment is only as collateral, 6 or good only in equity. 7 But if the assignee is merely a nominal party, suing for the assignor's 1 Rose. N. P. 67. 3 According to Howard v. Upton, 9 Hun, 434, the act must not only be properly in evidence, but in issue, or relevant to the issue. 8 Outram v. M,orewood, 5 T. R. 123. 4 Bond v. Fitzpatrick, 4 Gray (Mass.) 89. So declarations made by one who afterwards became an assignee in bankruptcy, or a trustee, are not admissible against him in that capacity. Leggc v. Edmonds, 25 L. J. Ch. 125; Metiers v. Brown, 32 L. J. Ex. 140. 6 Eby v. Eby, 6 Pa. St. 435 ; Kinna v. Smith, 3 N. J. Eq. (2 Green), 14 ; Woodruff v. Cook, 25 Barb. 505 ; Pringle v. Pringle, 69 Pa. St. 289 ; Morton v. Morton, 13 Serg. . 3 Union Horse Shoe Works v. Lewis, 1 Abb. U. S. 518, s. c. 1 Withr. Corp. Cas. 73. 4 Narragansett Bank v. Atlantic Silk Co. 3 Mete. 282, 288. 5 Trott v. Warner, 11 Me. 227; Came v. Brigham, 39 Id. 85. * Danneborge Mining Co. v. Barrett. 26 Cal. 286. I Even in an action on a subscription for stock. Buffalo, y Meeting.] Fraudulent repre- sentations by the corporate body may be proved by evidence that an official report, containing material misrepresentations of fact as to the affairs of the corporation, was presented to a public and general meeting of the corporators, by a board or committee act- ing in the course of its duty, and eitner that it was tacitly sanc- 1 Compare Deffell v. White, L. R. 2 C. P. 144; Kelly v. Calhoun, U. S. Supm. Ct 17 Alb. L. J. 65. s Bank of U. S. v. Dandridge, 12 Wheat. 64; Graves v. Lebanon Nat. Bank, 10 Bush (Ky.) 23, s. o. 19 Am. R. 60, and cases cited. a Mech. Bk. v. Bank of Columbia, 6 Wheat. 826. 4 Id. ; Vater v. Lewis, 86 Ind. 288, and cases cited. 8 2 Tayl. Ev. 1054; Briggs v. Partridge, 64 N. Y. 367. 6 See An<*. t a stranger; but is not necessary as against the corporation or its members, nor between it and one who is a party to the paper produced or claims under it, or the State proceeding to enforce rights under it. Commonwealth s. Woelper, 3 S. y .subpoena duces tecum to him ; but if simply entered in their records as the act of the corporation, although kept in his custody, should be called for by notice to produce. 6 The failure of the corporation to produce its books upon due notice entitles the adverse party to favorable presumptions in aid of his second- ary evidence ; 7 but it does not preclude them from producing the books on their own behalf for another matter. 8 65. Parol Evidence to vary Corporate Minuses.'] Where the record of meetings of a municipal corporation is kept pursuant to law, parol evidence, although admissible to apply the language to its subject-matter, is not competent to enlarge or contradict the 1 Partridge v. Badger, 25 Barb. 172. * 1 Dill. M. C. 357, 242 ; see also paragraph 36. 8 Graff v. Pittsburgh, te trustent be parties. Stilwell v. Carpenter, 2 Abb. N. C. 240, 261 ; Austin v. Munro, 47 N. Y. 867; Scranton v. Farmers' Bank, 83 Barb. 527. lu Merrittv. Seaman, 6 N. Y. 168; Carpenter v. Stilwell (above) ; 3 Wms. Ex'rs, 6 Am. ed, 2052-5; Id. 1981, n. b. ; 1986. 56 ACTIONS BY AND AGAINST covery will be assets ; but, in courts where the common-law rule is still followed, this proof may not be essential in such cases. 1 3. Appropriate Mode of Proof.'] The appropriate proof of the official character is the production of the letters testamentary, or of administration, granted to him by the appropriate tribunal within the State where he sues ; 2 and the rule is the same whether he seeks to prove it in his own favor, 3 or it is to be proved against him,* or proved by a third person as the source of title. 5 unless foundation is laid for secondary proof, parol evi- dence is incompetent. 6 But upon well settled general principles, direct proof may be dispensed with by estoppel, 7 and where di- rect proof is impossible, indirect evidence may suffice to raise a presumption that letters were duly granted. 8 The letters, since they are founded on a decree granting ad- ministration, are not the only evidence ; the decree itself may be proved. 9 The letters, however, are competent without the de- cree. 10 Unless the statute makes letters testamentary sufficient evidence, an executor must produce also the probate of the will. 11 The identity of the party with the one named in the letters may be presumed by the court from absolute identity of name, 12 but not from identity of surname. 13 In case of ambiguity or differ- ence, parol evidence is admissible to identify. 14 4. Effect of Letters as Evidence.] Letters in due form, granted by a court, within the State, and having jurisdiction, are at common law presumed to have been regularly issued, and to qualify the holder to sue and be sued ; 15 and the giving of bond I 3 Wins. Ex'rs, 6 Am. ed. 2002, &c. The regulation of this subject varies much in different jurisdictions, according to the extent to which the statutes have embodied the modern principle, that the representative is a mere trustee. 8 Noonan v. Bradley, 9 Wall. 394. 3 Belden v. Meeker, 47 N. Y. 307, affi'g 2 Lans. 470 ; and auth. cited. 4 Armstrong v. Lear, 12 Wheat. 175. 5 Pinney v. Pinney, 8 Barn. & C. 335 ; 1 Wms. Ex'rs, 6 Am. ed. 349 ; Remick v. Bntterfield, 31 N. H. 70, 84. 6 Williams v. Jarrot, 6 111. (1 Gilm.) 120, 129. 7 As where defendants had covenanted with the executors as such, Farnham v. Mallory, 2 Abb. Ct. App. Dec. 100 ; or where the alleged representative had as such conveyed to defendant, Bratt v. Bratt, 21 Md. 578 ; or had procured the action to be revived, by an order of court, reciting his character as such, McNair v. Ragland, 1 Dev. (N. C.) Eq. 539. CWra, Shorter v. Urquhart, 28 Ala. N. S. 360, 366. 8 Marcy v. Marcy, 6 Mete. (Mass.) 360; Battles v. Holley, 6 Greenl. (Me.) 145. 9 Farnsworth v. Briggs, 6 N. H. 561; Elden v. Keddell, 8 East, 187, LD. ELLEN- BOROUGH. But if the decree grants administration on condition, the letters should be produced. Dale v. Roosevelt, 8 Cow. 349. In some courts, however, performance of the condition will be presumed. See paragraph 4, n. 1. 10 Remick v. Butterfield, 31 N. H. 70, 84. II 3 Phil. Ev. 75. 1S Hatcher v. Rocheleau, 18 N. Y. 86. Contra, 3 Wms. Ex'rs, 6 Am. ed. 2060. 13 Fanning v. Lent, 3 E. D. Smith, 206. Contra, Trimble v. Brichta, 10 La. Ann. 778. 14 See 3 Abb. N. Y. Dig. 2d ed. 95. 15 Westcott v. Cady, 5 Johns. Ch. 334, 343 ; even though the death of the decedent was presumed from absence for less than seven years, Newman v. Jenkins, 10 Pick. 5 15. The seal of the surrogate may be affixed even pending the trial, Maloney v. Woodin, 11 Hun, 202. EXECUTORS AND ADMINISTRATORS. 57 and taking of oath may be presumed. 1 In New York and some other States, such letters are conclusive evidence of the au- thority of the representative, until reversed on appeal, or re- voked, 2 and at common law they are conclusive as to the au- thority of the representative over the personalty. 3 The recital, in the letters, of the jurisdictional facts, is prima facie evidence that they existed, 4 but if the record shows that the statutory no- tice to parties in interest was not given, jurisdiction fails. 5 The fact that a contest is pending in the probate court as to the va- lidity of the letters, does not impair their effect, whether prima facie or conclusive, if it be under statutes which impose the bur- den of proof on the contestants. 6 Letters taken out pending the suit, although competent at common law, 7 and in chancery, 8 es- pecially where no objection was made by pleading, are not suf- ficient under the modern practice, 9 except in favor of or against one who has been substituted as representative, 10 or who is en- abled to avail himself of the fact of appointment under supple- mental pleading or pleadings equivalent in effect. 11 What has been said as to the effect of letters is applicable to letters issued as of course, on producing and recording foreign letters in the probate court, unless the statute authorizing this proceeding, or the foreign statutes under which the original let- ters were granted, indicate a different rule. 12 5. Impeaching the Letters.} The burden of proof is upon one who disputes the authority of an executor or administrator, on the ground of want of jurisdiction. 13 The jurisdictional facts are defined by statute, and are usually death and assets, under the prescribed conditions as to domicile and location. 14 These matters may be disproved if the validity of appointment is in issue. 15 I Brooks v. Walker, 3 La. Ann. 150. So also may a prior resignation creating the vacancy filled by the letters, Gray v. Cruise, 36 Ala. N. S. 559 : but only if the surrogate had power to accept a resignation. Flinn v. Chase, 4 Den. 85. 8 2 N. Y. R. S. 80, 56 ; 1 Wms. Ex'rs, 6 Am. ed. 620, n. (h), and cases cited. 3 Allen v. Dundas, 3 T. R. 125. 4 Farley v. McConnell, 52 N. Y. 630, affi'g 7 Lans. 428 ; Belden v. Meeker, 47 N. Y. 307, affi'g 2 Lans. 470. 6 Randolph v. Bayne, 44 Cal. 866. 6 Brown v. Burdick. 26 Ohio St. 266. 7 Thomas v. Cameron, 16 Wend. 579. 8 Osgood v. Franklin, 2 Johns. Ch. 1 ; Doolittle v. Lewis, 7 Id. 45 ; Goodrich v. Pendleton, 4 Johns. Ch. 549. 9 Thomas v. Cameron, 16 Wend. 679; Varick v. Bodine, 3 Hill, 444; Bellinger T. Ford, 21 Barb. 811. 10 French v. Frazier's Ad. 7 J. J. Marsh. 425, 432. II Haddow v. Lundy, 69 N. Y. 820. 18 See on this subject Parker v. Parker, 11 Cush. 519; Dublin v. Cliadbourn, 16 Mass. 433. 18 Welch v. N. Y. Central R. R. Co. 53 N. Y. 610. 14 Comstock v. Crawford, 3 Wall. 403 ; 2 R. S. of N. Y. 73, 23; L. 1837. ch. 460, 1, same stat. 3 R. S. 6th ed. 826, 2; Farley v. McConnell, 52 N. Y. 630, affi'g 7 Lnns. 428. " Redf. on W. 57. But doubted ; see 67 N. Y. 880 ; 63 Id. 460. The weight of 58 ACTIONS BY AND AGAINST Bnt the letters cannot be impeached by proving that the surro- gate did not comply even with the requirements of the statute expressed to be conditions precedent of his action, such as exam- ination of parties on oath, 1 much less that they issued to a person not entitled, 2 if these requirements do not enter into the defini- tion of the jurisdiction of the court, and do not relate to the notice necessary to bind the adverse party. Nor can the letters be impeached, as to personalty at least, by showing that the testa- tor was incompetent, 3 or that the will was forged ; 4 but fraud in obtaining the letters is competent, 5 unless the statute affords an exclusive remedy in the probate court. The minutes of the surrogate are not rendered incompetent because the statute pro- vides that the testimony must be entered in a book and preserved as part of the record. 6 6. Best and Secondary Evidence of Authority. ,] If the pleadings require a party to prove his adversary's authority as executor or administrator, it is best to give him notice to produce at the trial the letters or probate, or both, as the case may require, unless the party is prepared to produce the decree or an exemplified copy of the letters as primary evidence. But it is not necessary, in order to let in secondary evidence, to prove that the probate or letters are in the adversary's possession ; for proof that he has been duly appointed executor or administrator, raises a sufficient presumption that they are in his possession to let in secondary proof. 7 7. Representative's Declarations and Admissions Competent against the Estate J] The admissions and declarations of an executor or administrator, made while he was clothed with official authority as such, are competent in evidence against the estate the decisions on this point 10 impaired by two considerations : Many of the English cases are the refusal of common-law courts to hold themselves bound by purely ecclesiastical adjudications. And many of the American cases arose at a time when probate was little more than prima facie authentication, like the acknowledgment or proof of a deed. The tendency of recent legislation is to make the decree of the probate court an adjudication in the fullest sense. See 63 N. Y. 460. Whether dis- proving death avoids the letters so far as to deprive those who have acted on them in good faith, of their protection, see Jochumsen v. Suffolk Bank, 3 Allen (Mass.) 87, in the affirmative; and Roderigues v. East River Bank, 63 N. Y. 460, rev'g 48 How Pr. 166, in the negative. 1 Farley v. McConnell, 52 N. Y. 630, affi'g 7 Lans. 428. 2 Comstock v. Crawford, 3 Wall. 403. 3 3 Redf. on W. 57 ; 1 Wms. on Ex'rs, 6th Am. ed. 618. Contra, see 2 Whart. Ev. 811. 4 Allen v. Dundas, 3 T. R. 125 ; Steph. Ev. 48. Exp. Joliffe, 8 Beav. 168, and see Stilwell v. Carpenter, 3 Abb. N. C. 263. Haddow v. Lundy, 59 N. Y. 320. 7 3 Wms. Ex'rs, 6th Am. ed. 2059. A paper imperfectly showing the will and Its probate, if shown to have been acted on as such by the representative, may bo competent secondary evidence against him of an admission in the will binding the estate, notice to produce the original probate having been given to him and disre- garded. 3 Wms. Ex'rs [2004], citing Gordon v. Dyson, 1 Brod. & B. 219. EXECUTORS AND ADMINISTRATORS. 59 while represented in the action, either by him 1 or by his suc- cessor in the administration. 2 Mere declarations or admissions however, as distinguished from acts, do not bind the representa- tive, 8 but he may explain or contradict them. Declarations and admissions made belore he was fully clothed with the trust, 4 or after he was removed, are not competent, as against the estate, to affect the parties beneficially interested other than himself, except perhaps to prove his knowledge of the fact admitted. Where there are several co-representatives, the admissions and declarations of one are not competent against the others, either to establish the demand as an original one, 5 or to revive the debt after the limitation has passed. 6 But proof of an admission of a fact by one is admissible, because it may be followed up by proof of a similar admission by all the others. Jf not thus followed, the judge should instruct the jury to disregard it. 7 8. The Decedents Declarations and Admissions. .] If the ex- ecutor or administrator sues or defends, by virtue of his charac- ter as such, evidence of the declarations and admissions made by the decedent in his lifetime is competent against the representa- tive ; 8 and even the decedent's declarations as to the value of his 1 Faunce v. Gray, 21 Pick. 243 ; Eckert v. Triplett, 48 Ind. 174 ; s. o. 17 Am. R 735 ; 1 Greenl. Ev. 215. Contra, Allen v. Allen, 26 Mo. 327; Crandall v. Gallup, 12 Coon. 372, and cases cited. The contrary has also been held of loose oral declara- tions to a third person, because the representative was deemed to have no interest, no adequate information, and no lejjal duty. Hueston v. Hueston, 2 Ohio St. 483; and in Ciples v. Alexander, 2 Const. (Troadw. S. C.), 767, it was held that a bare oral admission is not enough to sustain a recovery ; 8. P. Jones v. Jones, 21 N. EL 219. The better opinion is that the admission is competent, and if explicit and unex- plained, sufficient to go to the jury. As to an account stated with the representa- tive, see 1 Wms. Ex'rs [1947], n. f. ; N. Y. Code Civ. Pro. 395 ; Young v. Hill, 67 N. Y. 192, and cases cited. 8 Lash lee v. Jacobs, 9 Humph. 718; Eckert v. Triplett (above); Matoon v. Clapp, 8 Ohio, 248 ; contra, Pease v. Phelps, 10 Conn. 62, 68. 3 To this extent the principle in Rush v. Peacock, 2 Moody AL, J., in Smith v. Morgan. 2 M. & Rob. 257. " Perhaps the admissi- bility of statements made by executors, assignees, and others filling an official char- acter, but before they were invested with that character, will be found to depend on the nature of the facts stated by them. So an admission, before probate, by an ex- ecutor named in a will may perhaps be entitled to more consideration than the ad- mission of a mere stranger who has afterwards obtained letters of administration." Rose. N. P. 72. 5 1 Greenl. Ev. 215, 176. This rule, originally founded on the fact that other- wise those not admitting might be rendered personally liable, Hammon v. Huntley, 4 Cow. 493, has been reiterated since the reason failed. Elwood v. Diefendorf, 5 Barb. 407. 6 Tullock v. Dunn, Ry. , 521, s. P. Nash v. Gibson, 16 Id. 805. 3 Mattoon v. Young, 45 N. Y. 696. 4 McGeehee v. Jones, 41 Geo. 123; Brown v. Brightman, 11 Allen (Mass.) 220; Louis v. Easton, 50 Ala. 470 ; Jones v. Jones, 36 Md. 457 ; Poe v. Domic, 54 Mo. 124 ; Hubbell v. Hubbell, 22 Ohio St. 208 ; Key v. Jones, 62 Ala. 238 ; Latimer v. Sayre, 45 Geo. 468. 6 For cases where the courts have refused to do so, see Brown v. Lewis, 9 R. L 497; Roberts v. Yarboro, 41 Tex. 451 ; Howe v. Merrick, 11 Gray (Mass.) 129; Ballon v. Tilton, 52 N.H, 607; Graham v. Howell, 50 Geo. 203; Crawford v. Robie, 42 N. H. 162. 62 ACTIONS BT AND AGAINST kind of testimony rather than by the class of actions or parties. The New York statute, and those modeled from it, have been the most successful in this respect. That act addresses the prohibi- tion to the actual source of danger, viz., the version by an inter- ested person, of his interview with one who can no longer contra- dict him. To prevent evasion, the prohibition is made applicable not only to parties on the record and parties having an interest in the result, but to assignors and others through whom a party claims. To prevent unequal application, it is not enforceable against one side when the other side has put forward the testi mony of the person since deceased. 12. The New York rule.'] The statute is as follows : " Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a per- son from, through or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined as a witness, in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator, or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or in- terest from, through, or under a deceased person or lunatic, by assignment or otherwise; concerning a personal transaction or communication between the witness and the deceased person or lunatic ; except where the executor, administrator, survivor, com- mittee, or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence, concerning the same transaction or communica- tion." * 13. What Parties are excluded.'} A party to the action or proceeding cannot be thus examined in his own behalf or inter- est, or in behalf of the party succeeding to his title or interest. 2 1 N. Y. Code Civ. Pro. 829, am'd'g Code of Pro. 399. The act does not disqual- ify from making an affidavit. By recent amendment, " the husband or wife of a party or person interested, who cannot be examined concerning a transaction or communi- cation, as prescribed in the last section, cannot be examined as a witness, concerning the same transaction or communication ; or a like transaction or communication, be- tween the witness and the deceased person or lunatic." Id. 830. Compare Tavlor v. Kelly, 80 Pa. St. 96. * Where the statute is not in terms restricted to a party called on his own behalf, y prima facie evidence, for instance, the production of the letters under which the repre- sentative acts. 6 The fact that the action is in the name of the representative for formal reasons, although the estate has no in- terest as such, does not alter the case, if the interests of other par- ties are such that the reasons for protection equally apply. 7 And, on the other hand, the prohibition will apply for the protection of the estate, though the representative, being a party as such, be also made a party individually ; 8 or, though he be sued only in his individual name, if he might have been sued in his represent- ative character, or if the recovery will enhance or diminish the estate. 9 The words indicating the various personal relations and 1 Genet v. Lawyer, 61 Barb. 211. 8 Even where the statute does not expressly exclude the transferrer of the cause of action, the courts have sometimes excluded him, upon the equity of the statute. Louis v. Easton, 50 Ala. 470; 1 Whart. Ev. 452,. 473. 3 The owner of chattels transferred the title, and became agent for his trans- feree, and then bailed them with defendants without disclosing his agency. Held, that in his principal's action against the defendants, he could not testify to a demand made on one of them who had since died. Conway v. Moulton, 6 Hun, 650. A partner having assigned or released to his copartner is within the rule. Lyon v. Snyder, 61 Barb. 172. A child emancipated by his father does not derive title to subsequent earnings " from, through, or under "the father, in such sense that the father is incompetent. Shirley v. Bennett, 6 Lans. 512. 4 This qualification is consonant to the principle of the statute, and seems sup- ported by the doctrine of Cary v. White, 59 N. Y. 336, and Van Tuyl v. Van Tuyl, 8 Abb. Pr. N. S. 5, s. c. 57 Barb. 235. Contra, Lyon v. Snyder, above. & See paragraph 11, above. 6 Parhan v. Moran, 4 Hun, 717. 1 Hollister v. Young, 41 Vt. 156. 8 Dixon v. Edward, 48 Geo. 146. Nor does the fact that the representative, by verifying his pleading, has, by virtue of a statute, cast the burden of proof on the other party. Ib. 9 Louis v. Easton, 60 Ala. 470; Fitzsimmons v. South wick, 38 Vt. 514. It has, however, been held that, in a probate proceeding, the executor is not protected, be- cause it is said that before letters issued, he is not a party as such. Hamilton v. Hamilton, 10 R. I. 538 ; Dietrich's Estate, 1 Tuck. 129. On the other hand, it has been held that the protection in favor of the executor or administrator must be ex- tended by the court to an heir, ew York, where, strictly speaking, the incompetency is not that of the wit- 1 Thus, a husband, claiming by marital right of succession, has been treated as if he were next of kin to his wife. Dewey v. Goodenough, 56 Barb. 54. The term " heir " extends to heirs of deceased heirs claiming by representation. Merrill v. Atkins, 59 111. 19. " Survivor " protects a surviving partner. Green v. Edick, 56 N. Y. 613 ; and " assignees " includes grantees of land. Mattoon v. Young, 45 N. Y. 696; and donees of personalty. Howell v. Taylor, 11 Hun, 214. A bank making a loan on stock borrowed by an officer and pledged for his own benefit, under a rep- resentation that the loan was for a third person, Held, an assignee of its officer within the rule. Andrews v. Nat. Bank of N. Am. 7 Hun, 20. But a creditor, tak- ing a collateral security by an assignment from a third person, obtained for him by his debtor, is not an assignee of the debtor within the rule. Barney v. Equitable Lifa Assur. Soc. 59 N. Y. 587. If defendant in trespass justifies as having entered as the agent of the true owners, who claim under a deceased person, plaintiff's grantor cannot testify against defendant to conversations with the deceased. \Vheelock v. Cuyler, 4 Hun, 414. 8 See Mosner v. Raulain, 66 Barb. 213. 8 Cary v. White, 59 N. Y. 336. * For these rules see People ex rel. Norton v. N. Y. Hospital, 3 Abb. New Cases, 229, note. 6 Id. ; Little v. Little, 13 Gray, 264. 6 Card v. Card, 39 N. Y. 317; and see Martin v. Jones, 59 Mo. 187; Leaptrol v. Robertson, 37 Geo. 586. 66 ACTIONS BY AND AGAINST ness, but of his testimony to particular facts. 1 Hence a general objection is not enough. 2 19. Preliminary question of Competency^, Whenever it ap- pears that a witness who is within the statute is about to testify to an interview at which the deceased may have been present, the question whether the examination proposed relates to a personal transaction or communication between them, is, in strictness, one of preliminary proof, addressed to the judge, for the purpose of determining which, the witness may testify either negatively or affirmatively as to whether the deceased was present, and if so, whether anything passed between him and the deceased, and for this purpose may be asked such questions as are necessary to as- certain whether he merely overheard the conversation, or whether he was privy to it ; 8 and the objecting party may be allowed to interpose with evidence to the contrary, to enable the judge to de- termine whether the witness could testify to what passed at the interview. But in ordinary practice, the examination is allowed to proceed as evidence for the jury, until it appears that the wit- ness is stating a personal transaction or communication between him and the deceased ; whereupon all the testimony vitiated by this fact will be struck out, if a proper and timely objection is made. The principle is the same under any statute which treats the witness as compejbent generally, but incompetent as to partic- ular facts. 20. Moving to Strike Out Incompetent part of testimony^ If a witness is inquired of generally as to a transaction, by a question not indicating that it was a personal transaction or com- munication with the deceased, he may properly be allowed to an- swer, reserving to the objecting party the right to move to strike out, 4 and, if the testimony proves incompetent, the motion to Btrike out must be made at or before the close of the direct ex- amination. Cross-examining the witness at large waives the mo- tion to strike out. 5 If, however, the testimony does not show a personal transaction or communication for example, if it simply states that the witness had paid what was due to the deceased it is not to be struck out, unless on cross-examination the objector elicits the facts showing its incompetency ; then it must be stricken 1 But where the statute makes a general exclusion of the opponent of an executor or administrator, with specified exceptions, an offer of the testimony should show that it is within the exception. White v. Brown, 5 Reporter, 171 ; Hanna v. Mc- Vay, 77 Pa. St. 27, 31 ; and see Stewart v. Kirk, 69 111. 512. 2 Lewin v. Russell, 42 N. Y. 251. Compare Somerville v. Crook, 9 Hun, 668. 8 Otherwise any testimony might be objected to on the ground that if the de- ceased were alive he might contradict it. Isenhour v. Isenhour, 64 N. C. 640; Brower v. Hughes, Id. 642. The statute was not designed to exclude the testimony of a party, to an occurrence at which the deceased need not have been present. Franklin v. Pinkney, 18 Abb. Pr. 186, s. c. 2 Robt. 429. 4 Kerr v. McGuire, 28 N. Y. 446, 452. Compare Howell v. Van Sicklen, 6 Hun, 115, 120. * King v. Haney, 46 Cal. 560, s. c. 13 Am. R. 217. EXECUTORS AND ADMINISTRATORS. 67 out ; and the circumstance that the cross-examination had not been confined to this point, does not preclude the objector from mov- ing to strike out pll the incompetent testimony. 1 21. Proof of an Interview.'] Under the New York statute, and others which simply exclude all examination in regard to any personal transaction or communication, if the mere fact that a conversation was had between the witness and the deceased be the material fact, it may be error to allow the witness to state even that ; but ordinarily, where the material fact is the substance of the interview itself, it is not error to allow the examination to proceed so far as to state that an interview was liad, without proving what was said or done.* The ordinary test is, does the testimony tend to prove what the transaction was which was had personally by him with the deceased. 3 The exclusion is not, how- ever, merely of testimony to prove what took place. It is equal- ly incompetent to disprove all intercourse as to prove a particulai transaction. Testifying that there never was an interview is equally testifying " in regard to " the supposed communications, as is testifying to what took place at an alleged interview. 4 This may seem inconsistent with what has just been said about testify- ing to the fact of an interview, when only the conversation is material, and about testifying that the deceased was not present at an act, or that a communication when he was present was not personal, between him and the witness ; but the distinction, though refined, is clear. If what passed at the interview is the material fact, a witness who testifies only that an interview was had, but does not say what passed, is not considered as having testified in regard to the alleged personal transaction or communication. But if lie is allowed to testify that no interview ever took place, he does negative the supposed personal transaction or communica- tion. Proving an interview merely, does not prove personal com- munication ; but disproving all interview does disprove personal communication. Hence the rule that the witness cannot testify, even negatively, as to interviews. 22. What is a Personal Transaction or Communication^ The interview, to be excluded, must have been a personal one. An interview solely with an agent since deceased, is unaffected by the statute. 5 What constitutes a personal "transaction or 1 Kerr v. McGuire (above). s Hier v. Grant, 47 N. Y. 278. 3 Strong v. Dean, 55 Barb. 837. 4 Clarke v. Smith, 46 Barb. 30; Dyer v. Dyer, 48 Id. 190; Stanley v. Whitney, 47 Id. 586. Thus the witness cannot testify that he never paid money to the de- ceased, or that the deceased never paid money to him. The rule excludes testimony that an alleged personal transaction or communication was never had. Howell v. Van Siclen, 6 Hun, 115 ; Barrett v. Carter, 3 Lans. 68 ; or that witness did not see, or did not have a transaction with, the deceased. Mulqueen v. Duffy, 6 Hun, 299. 8 Ilildebrant v. Crawford, 65 N. Y. 107, affi'g 6 Lans. 602; Am. Life Ins. Co. v. Shultz, 2 Weekly Notes (Pa.) 665; Cheney v. Pierce, 88 Vt. 515, 588. But under 68 ACTIONS BY AND AGAINST communication " is not to be defined in the abstract. 1 The stat- ute is aimed at the abuse which might result, if, when the lips of one party to an alleged interview have been sealed by death, the persons deriving from him rights which he held at the time of the interview, could be prejudiced by the testimony of interested persons, as to what took place, or did not take place between them there. The statute is not confined to private communications and interviews, of which there were no other witnesses ; but applies to all personal communications, though made in the presence of others who might be called as witnesses. 2 But, on the other hand, it applies only to such communications and transactions as involved the witness as a party thereto. The question is, are the circumstances such as to indicate that in the consciousness of the deceased and the witness, there was any privity between them in the transaction or communication. 8 If the witness merely overheard what went on solely between the deceased and a third person, he is competent. 4 And this rule has been applied even where the conversation was an admission by the deceased of his previous transactions, with the witness. 5 But if in even a part of the conversation the witness took part, or even was included as one to whom the words of the deceased were addressed, or for whose ear they were in part intended, he cannot testify to that part, 6 but may to any other separable part. 7 23. Indirect evidence.'] The prohibition is not to be evaded by questions of a general form, such as whether the witness was in the habit of borrowing from the deceased, where such habit might form a ground of presumption as to what passed at a sup- statutes which exclude the surviving party to a contract, the death of a contracting agent has been thought to exclude the surviving party who contracted with him. 1 Whart. Ev. 451, 469, citing First Nat. Bk. v. Wood, 26 Wis. 500. Where the ac- tion was by A. to reform his deed to B. and B.'s to C., HeJ4, that A. might testify to what occurred between him and B., although C. was dead. Payne v. Elyea, 50 Geo. 395. 1 Birth is not a " transaction " between mother and child within the statute, so as to prevent the mother from testifying to it, against the child's executor. Matter of Paige, 62 Barb. 476. As to marriage, see Spicer v. Spicer, 16 Abb. Pr. N. 8. 113. ? Hatch v. Peugnet, 64 Barb. 189. 3 Brague v. Lord, 2 Abb. New Cases, 1 ; Johnson v. Spies, 5 Hun, 471. 4 Simmons v. Sisson, 26 N. Y. 264; Lobdell v. Lobdell, 36 N. Y. 327, s. c. 4 Abb. Pr. N. S. 56 ; Sanford v. Sanford, 61 Barb. 293. 6 Hildebrant v. Crawford, 6 Lans. 502, affi'd in 65 N. Y. 107. So under the Illi- nois statute allowing exception as to " facts occurring after the death of the de- ceased," evidence of admissions made by a party after the death, as to previous facts, is competent. Stewart v. Kirk, 69 111. 512. 6 As, for instance, one who went to the interview for the purpose of hearing it, and participated in the negotiation as where a wife went with her husband when he negotiated a loan on mortgage, and joined in the mortgage to release her dower. Farnsworth v. Ebbs, 2 Hun, 438, s. c. 5 Snpm. Ct. (T. & C.) 1 ; or where the de- ceased, in speaking to a third person, mentioned the witness, turning partly towards him, to include him, as it were, in the communication, Brague v. Lord (above). ' Gary v. White, 59 N. Y. 336. EXECUTORS AND ADMINISTRATORS. 69 posed interview ; * nor is it disregarded because testimony to facts necessarily or presumptively importing personal communications does not specify any particular interview. Thus, a physician or attorney is incompetent to prove bis own services as such to the deceased, as against the representative. 2 But the witness may prove an act by any circumstances which do not tend to do so by merely raising a presumption of a personal transaction or com- munication between him and the deceased. Thus he may testify to the admissions of the representative or heir, raising a presump- tion of payment to the ancestor. 3 The exclusion of the transaction or communication excludes all the incidents of it, 4 so far as they are connected with what affected the witness and the deceased together. 24:. Effect of Objecting Party testifying^ cfec.] "Where the party for whose protection the statute declares the testimony in- competent, is examined in his own behalf as to the transaction or communication in question, or where the testimony of the deceased or lunatic as to it is given in evidence, 5 by the party adverse to the one calling the witness, 6 the prohibition does not apply ; and this qualification is to be taken in connection with the general principle, that a party who puts in evidence concedes the right of the adverse party to tread the same ground in rebut- 1 Alexander v. Dutcher, 7 Hun, 439. But compare Kerr v. McGuire, 28 N. Y. 452. 2 Ross v. Ross, 6 Hun, 182 ; Somerville v. Crook, 9 Hun, 664. A party is com- petent against an administrator to identify his shop books offered in evidence. Strick- land v. VVynn, 51 Geo. 600 ; Leggett v. Glover, 71 N. C. 211 ; Kelton v. Hill, 58 Me. 115. If the books can be deemed admissible as at common law, notwithstanding the death of the other party to the transactions, they should be introduced only upon the common-law proof of accuracy, D C ^ B * N8 ' AN P JODGMKNT f- 81. Effect of the Statute of wills. 126 ' Ancestors title, and successors 82. Legitimate objects of extrinsic , 0fl ~ e . evidence 6 * Declaratlon s and admissions of the 83. Reasons for its liberal admission. ~ aj^or as to title, Ac. 84. Reasons for its strict exclusion. }*' Declarations of third persons. 85. Exceptional rule as to evidence in 128 ' ^clarations of successors, repre- rebuttal sentatives and benenciaries. 86-88. Extrinsic aid in reading. 129 ' Judgments. 89, 90. Extrinsic aid in testing valid- ity. XIII. ACTION TO CHAKGE HEIE, NEXT or 91-107. Extrinsic aid in applying. KIN, &c., WITH ANCESTOR'S DEBT. 108-115. Extrinsic aid in executing. 130. Material facts. 116. Time of declarations bearing on 131. Mode of proof, intention. I. DEATH. 1. Direct testimony.] Death, like birth and marriage, and the number and names of children, &c., may be proved by the testimony of a witness directly to the fact, and such testimony is not necessarily rendered incompetent by its appearing that his memory is aided by family records not produced, 1 nor even that he was not an eye-witness of the occurrence. When such testi- mony is offered the adverse party may, if he choose, interpose with cross-examination to ascertain if the witness has personal knowl- edge of the occurrence. If he has not, the burden is thrown upon the party calling him to show the conditions of lapse of time, re- lationship or information which render hearsay competent under the rules stated below ; 2 but such testimony, whetner admitted after scrutiny or without objection, is not very cogent. 8 Its weight depends much on the absence of other evidence to the contrary. 2. Registry of death or 'burial.'] Death may be proved by an official registry of the death, kept pursuant to statute, 4 or by a church or other registry of burial, shown to have been kept in the manner hereafter stated ; s and upon the same principle the 1 Secrist v. Green, 3 Wall 750. * See paragraphs 33, - sent himself, in this state or elsewhere, for seven years together, such person shall be accounted naturally dead, in any action con- cerning such lands or tenements, in which his death shall come in question, unless sufficient proof be made in such case, of the life of such person." It is not necessary for the party relying on such a statute to prove either alternative specifically, but a gen- eral proof of absence, showing a case which must be within one or the other alternatives of the statute, is enough. 5 7. Seven years' rule in other cases. ,] In analogy to the stat- ute as to life estates, and another as to bigamy, the courts estab- lished the rule that in all cases, whatever presumption may be claimed of the continuance of a life from the mere fact that it was shown once to exist, ceases at the expiration of seven years from the time the person was last known to We living, and that from the mere lapse of that time arises a legal presumption that the person is no longer living. This presumption, first suggested as a proper one for the jury to draw in analogy to the statutes, 6 is now a well recognized legal presumption, constituting, in the absence of evidence to the contrary, a prima facie case. 7 8. Absence and Inquiry] To bring a case within either a statutory or judicial rule as to seven years' absence, it is not enough that no evidence of the whereabouts of the person is adduced. There must be affirmative evidence of absence, from his established 1 Goods of Main, 1 Sw. & Tr. 11 ; In re Ilutton, 1 Curteis, 595. 9 Gibbes v. Vincent, 11 Rich. (S. C.) 823 ; Silleck v. Booth, 1 Younge uined toward him, is not sufficient. 9 In proving marriage by general repute, a witness may testify tiat the reputation at the place of residence was that the persons uestion were man and wife ; but he may be cross-examined as sources of his information, and if it appear on cross-exam.- in ques ... the 1 1 Bish. Mar.. & D. 483. 1 Hrcadalbane Case, Campbell v. Campbell, L. R. 1 Sc. App. in H. of L. 182* 1 Tnmmalty v. Tummalty, 3 Bradf. 369. 1 Tin* question of weight rather than competency seems to have been passed on in ~.- '-crvo v. Redgrave, 38 Md. 98. Compare Blackburn v. Crawfords, 3 Wall. 194. ';. -tonnes in testimony, due to family pride, fcc., explainable. Gaines v. New -: v ., C WulL 705. Testiniony to a marriage between dissolute or unscrupulous r.. r. to ho cautiously weighed. Steuart v. Robertson, L. R. 2 Sc. App. 494, 620, * . 13 Moak's Eng. R. 165, 191. 1 lir.tw.-r v. Bowers, 1 Abb. Ct. App. Doc. 214, s. o. as Bowers v. Brewer, 9 N. T. Ifg. ol.. I'M}, *, p. O'Gara v. Eisenlohr, 88 N. Y. 296. Commonwealth Y, Stump, 63 Penn. St. 132. 'I'uauinjjhama v. Cunninghams. 2 Dow, 482, 511; Commonwealth v. Stump k-o'j. Conlr.t, Lyle v. Ellwood, L. R. 19 Eq. 0. 98, s. o. 11 Moak's Eng. 702. ' J.iilt v. Burger, 3 Bradf. 432, 437. :< .- v Clark, 8 Paige, 674, 682. The degree of proof of cohabitation and ^.4. nast bo increased when one of th parties is still living. Hill v. Burger, 8 //*.:. 4-2,437. 6 HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 81 17. Indirect evidence of Marriage J\ Evidence of cohabitation and repute that is of status or matrimonial condition is only indirect or presumptive evidence of a contract of marriage. This is primary not secondary evidence, 1 but its efficacy depends en- tirely on its justifying an inference that a contract of marriage was once made ; 2 still it is not essential that such evidence point to any particular time of contract, unless time is material under the issue. One -who alleges and fails to prove a formal contract of marriage is not thereby necessarily precluded from adducing indirect evidence, 3 although its value may be fatally impaired \>* the false allegation of a formal marriage. 4 Indirect evidence mr 1 be sufficient to establish a marriage, even though it may have t* effect to invalidate a subsequent marriage. 5 3 ay be ex t 18. Cohabitation and Repute.'] In the absence of dir^ ence o f proof, marriage cannot be proved by cohabitation alone, howe iera i re p u tj long continued ; 6 there must be something to show that th^ no ^ com p G habitation was matrimonial, not meretricious. The fact tlu^ reasonably parties were reputed among friends and acquaintances to be Kcterize it and wife will suffice, with evidence of cohabitation, if the repu tion be a general or at least a consistent reputation. A diviu^u repute is of no avail. 7 A mere local repute, if residence is brief and frequently changed, is of little account alone, for an in tended meretricious connection might be concealed by a regard for appearances. Hence there should be some degree of public recognition of the, relation of husband and wife among acquaint- ances and friends. 8 The mere fact that the man, under particular circumstances, may have attempted to give to his mistress a dif- ferent character irom the meretricious one which she, in fact, sustained toward him, is not sufficient. 9 In proving marriage by general repute, a witness may testify that the reputation at the place of residence was that the porsons in question were man and wife ; but he may be cross-examined as to the sources of his information, and if it appear on cross-exam- 1 1 Bish. Mar. & D. 483. 2 Breadalbane Case, Campbell v. Campbell, L. R. 1 Sc. App. in n. of L. 182. 3 Tummalty v. Tummalty, 3 Brarlf. 369. 4 The question of weight r.itber than competency seems to have been passed on in Redgrave v. Redgrave, 38 Md. 98. Compare Blackburn v. Crawford*. 3 Wall. 194. Inconsistencies in testimony, due to family pride, . 217, 223 (1860-1861). 9 See Hayes v. People, 25 N. Y. 396, per ALLEN, J. ; 1 Bish. Mar. tions that the declarant is unmarried, made without reference to a reputed relation between the particular parties, are held incom- ' Cochrane v. Libby, 18 Me. (6 Shepl.) 39. 1 O'Gara v. Eisenlohr, 38 N. Y. 296. Contra, see 1 Bish. Mar. & D. 453, and cases cited ; and see Kelly v. Drew, 12 Allen, 107, 109. 3 Scudder v. Gori, 18 Abb. Pr. 223, s. c. less fully, 3 Robt. 661. 4 Jackson v. Claw, 18 Johns. 346. An advertisement forbidding trust, appearing in the newspaper at their domicile, immediately after separation, has been held com- petent, the original manuscript being lost. Jewell v. Jewell, 1 How. U. 8. 219, 232 ; but the better opinion is that there must be evidence connecting one of the parties with it. 6 Niles v. Spragne, 13 Iowa, 202. Shedden v. Patrick, L. R. 1 Sc. & D. App. 4TO. T Hill v. Burger, 3 Bradf. 432. 449, a. p. Steuart v. Robertson, L. R. 2 Sc. App. 494, 620, s. c. 13 Moak's Eng. 165, 191. 8 Per BRADFORD, Surr. Hill v. Burger (abovet. 9 Such testimony was held to have no weight, in Gaines v. New Orleans, 6 WalL 706. 10 Tummalty v. Tummalty, 3 Bradf. 369. HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 85 petent. 1 Denials of " marriage " are inconclusive, because they may be meant of a ceremonial marriage, while the parties were actually man and wife. 2 23. Foreign Law.~] The written law of another State, or of a foreign country, may be proved in the manner stated at p. 22 of this volume. The unwritten law may be proved by calling as a witness one practically conversant with it, either as a lawyer in that country, or as having had a course of legal duty to perform there in respect to marriage, such as to make it probable that he has made himself acquainted with the law on that subject. One who is not so qualified, and who has acquired his Knowledge solely from books, is not competent. 8 III. ISSUE OR FAILURE OF ISSTTE. 24. Burden of proof J] In the absence of evidence neither birth of children, nor the contrary, is presumed. But slight evi- dence may suffice. 4 One claiming by collateral descent must show who was last entitled, and then prove his death without is- sue ; next prove all the different links in the chain of descent which will show that he and the claimant descended from the same common ancestor, together with the extinction of all those lines of descent which could claim any preference to the claimant. He must prove the marriages, births and deaths, and the identity of persons necessary to fix title in himself, and the extinction of others who would have, if in existence, a better title. 5 This is done by proving the marriages, births and deaths necessary to complete his title, and showing the identity of the several parties. 6 He must prove that all the intermediate heirs between himself and the ancestor from whom he claims, are dead, without issue. 7 The non-existence of issue is a fact separate from death, in sup- port of which some evidence must be given. 8 25. Presumptions as to Failure of Issue, .] In the absence of evidence, the presumption is that a person dying intestate, left heirs ; 9 and the mere fact that the death occurred under twenty- 1 Van Tuyl v. Van Tuyl, 8 Abb. Pr. N. S. 5, a. c. 57 Barb. 235. 9 Where there is ample evidence of long and uninterrupted cohabitation and re- pute, evidence of the declaration of the man that they were not married, and his testi- mony that they were never married, since they may be construed as referring to a cere- monial marriage, are not enough to take the case from the jury. Richard v. Brehm, 73 Penn. St. 140, s. c. 13 Am. U. 733. 8 16 Moak's Eng. 591 n. and cases cited; Rose. N. P. 138, 139 ; 1 Bish. Mar. t D. 40-J-430, 521-536. 4 Emerson v. White, 29 N. H. (9 Fost ) 491, 497, and cases cited. 4 Sprigg v. Moale, 28 Md. 497, 605 ; 3 Washb. R. P. 4th ed. 18 (38). 6 Emerson v. White (above). 7 Richards v. Richards, 15 East, 294 n. 8 Sprigg v. Moale (above). 9 Harvey v. Thornton, 14 111. 217. 86 ACTIONS BY AND AGAINST one, 1 or that it is only presumed from the lapse of time, is not enough to raise a presumption that he left no issue, 2 except after great lapse of time, and only for the purpose of setting that branch of the family out of the case ; 8 but slight evidence of death without issue, may, after great lapse of time, De sufficient ; * and unsuccess- ful inquiry for children, ii any, at places where, if such had existed, information could be obtained, will suffice to sustain a verdict in such case. 5 26. Escheat] Every citizen dying is presnmed to leave some one entitled to claim as his heir, however remote, unless one or other of the only two exceptions known to our law, alienage or illegitimacy, should intervene. The title of the State, by reason of defect of heirs, can be established by actual proof of the fact of alienage or of illegitimacy, or in certain cases, by proof of reputation of either of those facts, provided such proof be direct and positive, founded upon inquiry, advertisements, personal family knowledge, or actual declaration of the last person seized, or of those from whom his title descended. Mere hearsay repu- tation of the general fact of defect of relations and heirs is not sufficient. 6 27. Possibility of Issue Extinctl\ The highest authorities in medical jurisprudence sustain the proposition that a woman be- yond the age of fifty-five has no possibility of issue. Extinction of possibility may be presumed as a matter of fact at an earlier period, varying with the evidence as to length of married life and condition of health. 7 28. Registry of birth or baptism.'] The fact of birth may be proved by an official registry of birth kept pursuant to statute, or by a registry of baptism shown to have been kept in the man- ner hereafter stated ; 8 but a mere registry of baptism is not, as an official registry of birth may be, evidence of the date of birth, though stated in it, 9 further than to show that it must have been prior to the date recorded as that of baptism, that is to say, it only proves that the child was in existence at the time of the 1 Clark v. Trinity Ch. 5 Watts 3, 3 ; Monkton v. Att. Gen. 2 Puss. & M. 156, L-.\. BROUGHAM; McCarty v. Doming, 4 Lans. 410. But see 1 Whart. Ev. 208. Aa to whether siatement of a legal conclusion, such as that one was " heir," or " could get nothing by law," and the like, is competent, the authorities are in conflict. I:i tho affirmative, see Doe v. Randall, 2 Moore & P. 20; Doe v. Davies, 10 Q 15. 314. In the negative, Chapman v. Chapman, 2 Conn. 350. Compare Viall v. bmith, 6 R. I. 417. 15 1 Tayl. Ev. 576. 16 E;nerson v. White, 29 N. H. (9 Fost.) 491, and cases cited. " 1 Tayl. Ev. 569. 18 Doe v. Randall, 2 Moore & P. 20. Where tho declarant's tie to the family was by marriage, the fact that it had been dissolved by death before the declaration, does not render tho declaration incompetent. 1 Tayl. Ev. 571. 19 Entire certainty not necessary. Scott v. Ratcliff, 5 Pet. 81. 92 ACTIONS BY AND AGAINST show affirmatively that it was a relative or connection, 1 (though the degree need not be stated, 2 ) who is since deceased. 8 It is not enough that the adversary might bring out the contrary by cross- examination. 4 It is enough to show that the declarant was thus connected with the family, without showing him to be a connection of the person whose connection with the family is to be established ; 5 ana, con- versely, relationship of the declarant with the particular person is sufficient to admit his declarations of the relationship of that person to the family. 6 But his relationship to one or the other must be established by other evidence than the declarations them- selves; 7 and this is a preliminary question for the judge, 8 and slight evidence that the declarant was connected, even without showing precise degree of relationship, seems to be enough. 9 But if the relationship is remote, the question will be whether the connection was such as to bring the declarant within the natural probability of knowledge and correctness. 10 It is not, however, necessary that the declarant should have had personal knowledge, 11 nor need the declarations have been contemporaneous with the event, 12 nor indicate the source of the declarant's information. 13 37. Family records.'] Records of such facts of family history, made or preserved as such by a member of the family, are com- 1 Waldron v. Tattle, 4 N. H. 371, 378 ; Emerson v. White, 29 Id. 491 ; s. p. Chap- man v. Chapman, 2 Conn. 347. 2 Vowles v. Young, 13 Ves. 146, Ld. ERSKIXE. 3 Greenleaf v. Dubuque, y law.~\ A register kept with- out authority of law is competent, in evidence of the main fact, whether of marriage, 4 baptism, 5 or burial, 6 and of its date, but not of other facts stated in it, such as date or place of birth or death ; ' but, to admit it, it must appear that it was kept by the proper officer, 8 or by the officiating clergyman, 9 pursuant to his duty or in the usual course of his functions, 10 and that he is since de- ceased ; u but the fact that he was not a sworn officer, 12 or that he kept it not as a public record belonging to the parish, but as his private memorandum, 13 does not render it incompetent, if he was under a duty to keep it. It should also appear that the register is produced from the custody of his successor, the entry being in his own handwriting and appearing to have been made contem- poraneously with the performance of the rite, and before contro- versy arose, with no apparent inducement to misstate nor inter- est adverse to his official duty ; and in such case additional memoranda on the register, of fee paid, is not necessary to render the paper competent. 14 If the entries were made first in a day- book, and then transferred to the register, the day-book is not, but the register is, evidence of the act entered in the register. 15 If the record is of a public nature, such as that of a church, an examined copy of the entries relied on, without production of the foreign authority and have custody of the original, or certified by the foreign officers who, at the time of certifying, had custody of the original, with proof that the per- son certifying was acting in the office, and that his signature is genuine. Chouteau v. Chevelier, 1 Mo. 343. 1 S. Y. Code Civ. Pro. 956 (L. 1875, c. 136). In Pennsylvania, ex parte evidence of the copy has long been held admissible where the registry is beyond seas. King- ston v. Leslie, 10 Serg. , 6 Wend. 173. 6 See paragraph 78. 6 Steele v. Price, 5 B. Monr. 58. 7 Adams v. Winne, 7 Paige, 97. " Bulkley v. Redmond, 2 Bradf. 285 ; Steele v. Price, 5 B. Monr. (Ky.) 58. 9 Dan v. Brown, 4 Cow. 483 ; bisson'v. Conger, 1 N. Y. Supm. Ct. (T. y the testator, or to determine the quantity of interest he has given by his will. " The same (it is conceived) is true of every other disputed point respecting which it can be shown that a knowledge of extrinsic facts, can, in any way, be made j.ndl- lary to the right interpretation of a testator's words. " VL Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admis- sible to prove what the testator intended, and the will (except in certain special cases, see Proposition VII.) will be void for uncertainty. " VII. Notwithstanding the rule of law which makes a will void for uncertainty, where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, courts of law, in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for the purpose. "These cases maybe thus defined, where the object of a testator's bounty, or the subject of disposition (i. e., the person or thing intended), is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator." 1 Ld. Abinger in Doe ex dem. Hiacocks v. Hiscocks, 5 31. ct W. 363. HEIRS AND NEXT OF KIN, DEVISEES AND LEGATEES. 131 be said that text writers of high authority 1 declare that the rules for the admission and exclusion of parol evidence in regard to wills are essentially the same which prevail in regard to contracts generally ; and it may be further urged that the right to dispose by will is of great importance ; 2 that it is commonly exercised under circumstances unfavorable to formality and exact expres- sion ; and that the court ought to have every aid that the Con- duct and declarations of the testator can give, to guide in ascer- taining his intention. 84. Reasons for its strict exclusion^ On the other hand, it is to be considered that the rules allowing parol evidence in aid of the interpretation of contracts are not fully applicable to wills, for they rest on several reasons that are foreign to these instru- ments. 1. A will is not a transaction between parties, but a silent and private act ; and the principle of good faith which may bind a contracting party by what passed in conversation, does not jus- tify disposing of the rights of heirs and next of kin by what may have fallen from their ancestor. 2. Nor is a will a grant or effect- ive act during the testator's life, but a revocable expression of in- tention, made frequently under circumstances likely to involve secrecy, if not fickleness and change ; and the law does not bind a man by his expressions of intention, much less by his oral dec- larations that he has expressed certain intentions in a revocable writing. 3 3. It is a matter of common observation that testators are instinctively disposed to shroud their testamentary acts in secrecy, and disguise their intentions, and to baffle with equivoca- tion or misrepresentation the importunities of the expectant and the inquisitiveness of the curious. The law regards this conceal- ment as a right of the testator; and even positive deceit by him, however questionable morally, is not a legal wrong unless fraud is accomplished by it. 4 Therefore the testator's representations as to what lie has or has not done, much more those as to what he intends, fail to afford any substantial presumption as to the testamentary act. 4. Besides this absence of reasons for admit- ting extrinsic evidence so freely as in cases of contracts, the ob- jections to hearsay evidence apply in the strongest manner in many cases ; and the fact that the controversy in which such evi- dence is offered usually arises between those who stood in very unequal degrees of personal intimacy with the testator, and that his own lips are sealed by death, render the resort to such evi- dence peculiarly liable to abuse, which it is the object of the statute to avoid by requiring every testamentary act to be expressed in a 1 Redf. on W. 496 ; 1 Greenl. Ev. 287. As a practical puide, this maxim would be very misleading. It would be less inexact to compare wills to statutes. 9 Sec Maine's Anc. Law, 194. 1 If tlie testator bound himself by a promise, it is to be enforced, if at all, as a contract. Ridley v. Ridley, 11 Jur. N. S. 475; and see 60 Jf. Y. 83; McGuire v. Jlcr.uire, 11 Bush, (Ky.) 142. 4 Bee SStickland v. Aldridge, 9 Ves. 616. 132 ACTIONS BY AND AGAINST written and authenticated will. Such considerations as these have led the courts in recent years to restrict the admission of extrinsic evidence within the limits I shall now endeavor to indicate. 1 85. Exceptional rule as to evidence in Rebuttal^ The con- siderations to which I have adverted, however, it will be seen do not militate against evidence impeaching or disproving the valid- ity of the testamentary act ; nor, on the other nand, against evi- dence tending to show that the intention was really just what is expressed on the face of the will ; and hence, in this class of cases, there is peculiar practical importance in the principle of evidence, that when one party may and does attempt to prove a fact, the other party thereby acquires a right to adduce evidence to the contrary. It will be seen that the method of attack some- times enlarges the scope of the defense, and admits evidence that the rule would exclude if offered in the first instance. 2 86. Extrinsic aid in Reading?^ Whatever is necessary to possess the court with an understanding of the language or char- acters in which the will is written, may be supplied by extrinsic evidence ; 8 and it will readily be seen that the principle is the same, whether the difficulty in reading the will arises from the fact that it was written in a foreign language, or a peculiar dia- lect, or from the fact that the testator habitually used words of the common language in a peculiar way, or used characters and hieroglyphics instead of the common notation of language. But the competency of the evidence consists not in its showing what testator intended in this particular case, 4 but in showing what his habitual speech and notation were, leaving the court, in the light of this fact, to read the will and ascertain thence what his inten- tion was. 5 Accordingly, if a will is written in a foreign language or in short-hand or cipher, it may be translated by competent evidence ; 6 if it contains terms which the writer habitually used in a peculiar sense, that habit can be shown ; 7 if it contains terms 1 Earlier cases, and not a few later ones founded on earlier rulings, admit such evidence more freely, and it will not be difficult to find cases to the contrary of some of the propositions stated in the text in this connection, but I confine myself to a statement of the rule, and a selection of cases illustrating it, as now administered in the courts of highest authority. 2 Where one party proved the nature of a transaction with the testator to affect the construction or application of the will, Held, that the other might give testator's declarations t*o the contrary, in evidence, by way of contradiction. DENIO, J., Til- lotson v. Race, 22 N. Y. 127. 3 See Wigram's 4th proposition above, p. 130, note. 4 Id. 1 Hence neither the testator's declarations of what he meant, nor the testimony of the draftsman as to the meaning of the clause, is competent (1 Redf. on W. 635 P 50, and cases cited) ; nor is a letter to the testator from his solicitor (Wilson v. 6'Leary, L. R. 7 Ch. App. 448, s. c. 2 Moak's Eng. 842.) 8 Clayton v. Ld. Nugent, 13 Mees. & W. iiOO. 7 Per BRADFCKD, J., Hart v. Marks, 4 Bradf. 163 ; Doe ex dent Hiscocka v. Hiscocks, 6 Mees. . 26, 8. c. 5 Moak's Eng. R. 621, and cases cited. 8 As, for instance, where an interlineation consists of words necessary to complete the sense, and apparently written at the same time and with the same ink. Goods of Cadge, L. R. 1 P. . But see Charter v. Charter, above cited, where it was held that evidence of the declarations of a testator as to whom he intended to benefit, or supposed he had benefited. <-:m only be received where the description of the legatee, or of the thing bequeathed, ia equally applicable iu all its parts to two persons, or to two things. 140 ACTIONS BY AND AGAINST. body, not precisely, but nearly, answering to the designation in the will, it cannot be assumed without some proof .that there is or has been any other institution bearing a name or description similar, 1 unless the designation is matter of description, by words judicially known to be applicable to many such bodies. 2 But if the question is which of two adverse claimants are entitled, the rules of evidence differ materially. Where the name and de- scription lead to a reasonable belief that they apply to some one person, and there is no other person to whom they can with any probability apply, then slight evidence will be sumcient to prove that that person was intended by the designation. But if, with such proof in favor of one, there is similar or stronger proof identifying another, then the claim of the former, though such that, if it stood alone, it would be prima facie proved, is con- trolled by the claim of the other, who is more precisely identi- fied. 3 In the case of adverse claimants of the same gift, the fol- lowing rules apply : 1. If one (being competent to take) alone precisely answers the whole designation of the will, 4 or is identified by the con- text, 5 extrinsic evidence that the other was intended is incom- petent. 2. If both precisely answer the whole designation and indi- cations of the will, a latent ambiguity or " equivocation " is pre- sented, and extrinsic evidence is competent ; and in this class of cases direct evidence of the testator's intention, even by proving his declarations of purpose, is admissible. 3. If neither precisely answers the designation and indications of the will, but both do so approximately, this is also a case of latent ambiguity, admitting extrinsic evidence ; and in this class of cases, too, according to the better opinion, the testator's dec- larations of intent may be proved. A latent ambiguity is made out within these rules, not only where there is a legal name which fits several, but equally where there is a description only, 6 or a name used in common parlance, 7 1 SHAW, C. J.. Minot v. Boston Asylum, 5. It seems that a devisee may also, in some cases, upon parol proof of testator's agree- ment to devise to another, be held a trustee for that other. Howland Will Case, 4 Am. Law Rev. 661, and cases cited. 3 Phillips v. McCoombs (below); 1 Redf. on Wills, 647, Hall v. Hill, 1 Dru. A War. 94, 116. 3 Boys v. Williams, 2 Russ. f Husband or Wife as Witness.'] The New .York statute provides that no person shall be excluded or ex- cused 6 from being a witness because he or she is the husband or influence of that relation is recognized by the law as an element of great impor- tance, iii estimating the just weight of facts as evidence, and the natural presump- tions resulting. Thus the law recognizes and draws presumptions from the natural disposition of a husband to make provision for his wife ; her disposition to be silent, or even acquiescent, for the sake of peace, in the face of his wrongful conduct toward others, or toward herself or her separate property rights; the natural disposition of each, without claim or admission of transfer or compensation, to hold and allow the holding of the exclusive property of one, in the use or safe-keeping of the other ; and the peculiar facility which the relation affords for undue influence, particularly over the wife, and for the transfer to her of property in fraud of the husband's cred- itors. The rules-stated in the text are founded chiefly on these principles, which are almost universally recognized, although in their application some disagreement of authority still exists in the several States. 1 Chap. V, paragraphs 14-23. 8 "Chap. V, paragraphs 61-57. 8 For these rules, see 1 Bish. Mar. W, ; Swell's Cas. The traditional rule ia that the courts must do so. See Waldron v. Ritchings, 9 Abb. Pr. N. S. 359, s. c. 8 Daly, 288. But the changes in the law on this subject are so general and so nearly uni- form in substance in the States deriving their jurisprudence from England, that the courts sometimes hesitate to declare void transactions that are valid by the law of the forum, and naturally presumable to be so by the law of the sister State, but for thia rule. See Worthington v. Ilanna, 23 Mich. 530; Adams v. Honness, 62 Barb. 326. 4 Savage v. O'Neil, 44 N. Y. 298, rev'g 42 Barb. 374. Stoneman v. Erie Rw. Co. 52 N. Y. 429, affi'g Buff. Super. Ct. (1 Sheld.) 286. 8 The common law entire disqualification could not be legally waived by consent. 2 Kent's Com. 178; Parker v. Sir Woolston Dixie, (\ T. Hardw. 264, 49 N. Y. 610; Dwelley v. Dwelley, 46 Me. 377; Bevins v. Cline, 21 Ind. 87; Barbat v. Allen, 16 Jur. 338, 8. o. 10 Eng. L. & Eq. 696 ; Pedley v. Wellesley, 3 Car. & P. 558. But was frequently waived in practice. And in some later cases a waiver waa held legal; ACTIONS BY OR AGAINST HUSBAND OR WIFE. 165 wife of a party, or of a person in whose behalf the action or special proceeding is brought, prosecuted, opposed, or defended. 1 The following exceptions, however are made : 2 "A husband or a wife is not competent to testify against the other upon the trial of an action, or the hearing upon the merits of a special proceed- ing founded upon an allegation of adultery, except to prove the marriage. A husband or wife 3 shall not be compelled 4 or, with- out consent of the other if living, allowed to disclose a confiden- tial communication, 5 made by one to the other during marri- age. In an action for criminal conversation, the plaintiff's wife is not a competent witness for the plaintiff, but she is a competent witness for the defendant, as to any matter in controversy ; ex- cept that she cannot, without the plaintiff's consent, disclose any confidential communication had or made between herself and the plaintiff." Business transactions between them are not confiden- tial communications within the policy of the statute, 6 nor are com- munications made in the presence and hearing of third persons. 7 But written as well as verbal communications, if confidential, are within the policy of the rule. 8 4. Their Admissions and Declarations?^ When either hus- band or wife is strictly incompetent as a witness, either generally or as to a particular fact, evidence of his or her declaration of and the persons competent to waive it were the husband and wife not the parties to the suit. Russ v. The War Eagle-, 14 Iowa, 363 ; Blake v. Graves, 18 Id. 317, DILLOX, J. dissented; Jordan v. Anderson, 19 Id. 565. Objection to wife's competency was not waived by permitting examination-in-chief. Schmidt v. Herfurth, 5 Robt. 124: But see Tappan v. Butler, 7 Bosw. 480; Boardman v. Boardman, L. R. 1 P. l v. Eastham, 15 Gray, 828); New Jersey (Armstrong v. Ross, 20 N. J. Eq. 109); Tennessee (Letton v. Baldwin, 8 Humph. 200; 10 Id. 552). In Missouri, where it was once approved (Miller v. Brown, 47 Mo. 504, s. c. 4 Am. R. 345), it has since been nbandoned. In Alabama, the English rule has been held not applicable where the con>idi_Tation was purely for the benefit of the husband (Nunu v. Givhan, 45 Id. 870, 375). * Sherwood v. Archer, 10 Hun, 73. Yale v. Dederer, 18 N. Y. 265; 22 N. Y. 450; Willard v. Eastman, 15 Gray, 828; Manhattan Brass, Ac. Co. v. Thompson, 58 N. Y. 80. It has been held else- where, that if there is a written contract by the married woman, parol evidence of her declarations at the time of its execution that it was not to bind her separate prop- erty is inadmissible (7 B. Mon. 293); and so of her testimony that she did not in- tend it to, and equally of that of the creditor that at the time he was ignorant that ehe had a separate estate. Kitnm v. Weippert, 46 Mo. 532, s. c. 2 Am. R. 541. ' Yale v. Dederer, 68 N. Y. 329. 8 Maxon v. Scott, 55 N. Y. 247 ; Baker v. Lamb, 11 Hun, 519. Contra, Shorter Y. Nelsou, 4 Lu.na. 114. 184: ACTIONS BY OR AGAINST HUSBAND OR WIFE. her promise to pay as soon as she received income therefrom. 1 But in the absence of other evidence of an intent to charge, it will not be inferred from her subsequent admissions of liability. 2 34. direct Benefit to separate estate.'] If it appears that she had a separate business, and the contract was made in the course and pursuit of it, this is enough. If it appears that she had a separate property, and the contract was made for its direct benefit, in the legal sense, this is enough. The fact that such kind of contracts may in the ordinary course of affairs be made for the benefit of an estate, is not enough, for the court cannot presume that a simple contract, with nothing on its face to in- dicate the fact, was made for the benefit of her separate estate; 8 but it must appear either that the consideration was actually ap- plied to her estate, 4 or came actually to her hands, or to those of an agent authorized to receive it on her behalf. 5 The fact that the consideration came to her hands is presumptive evidence that the contract was for the benefit of the estate ; and the produc- tion of her personal receipt, 6 or of her order to pay a third per- son, with proof of payment to him, 7 is presumptive evidence of this ; and proof of payment to her husband, if he were shown to be her general financial agent, might also be prima facie enough. 8 Such evidence may be rebutted by her testimony, or other evidence, that the consideration neither came to her hands nor those of her authorized agent, nor was applied to the use of her estate. 9 But if once received by her, the fact that she handed it to her husband, who misappropriated it, does not im- pair her liability . 10 And, generally, the fact that in the particular case the contract proved the reverse of beneficial, in a business sense, is not material. 11 The circumstance that work was done or materials were used for the improvement of her estate, if shown to have been within her knowledge, does not raise a conclusive presumption against her, 12 but will sustain a verdict. Evidence Conlin v. Cantrell, 64 N. Y. 217. 8 Hansee v. DeWitt, 63 Barb. 63. * Nash v. Mitchell (above). 4 As, for instance, by exonerating it from an incumbrance, or by a purchase. B See Williamson v. Dodge, 5 Hun, 497, 499 ; White v. McNett, 33 N. Y. 371. 8 Treadwell v. Hoffman. 6 Daly, 210. 7 Prendergast v. Borst, 7 Lans. 489. 8 White v. McNett, 33 N. Y. 371. But a husband's declarations that she received it for the use of her separate estate, are not competent, in the absence of evidence that he was authorized to make such declarations. Deck v. Johnson, 1 Abb. Ct. App. Dec. 497. ' White v. McNett (above). Where the contract was her joint obligation with her husband, evidence that her authorized messenger received the money, but imme- diately delivered it to the husbanil, and that the wife never received it, is sufficient to rebut the presump'ion of benefit to her estate, Prendergast v. Borst, 7 Lans. 489. 10 Smith v. Kennedy, 13 Hun, 9. 11 Thus she is liable for her attorney's fees, though the litigation was unsuccessful. Owen v. Cawley, 36 N. Y. 600, affi'g 13 Abb. Pr. 13. 14 Westgate v. Munroe, 100 Mass. 227 ; 2 Bish. Mar. W. 218. ACTIONS BY OR AGAINST HUSBAND OR WIFE. 185 that the land belonged to her and her husband as tenants in com- mon, does not impair her liability. 1 If such a claim rests on an allegation of ratification, it must appear, 1. That credit was not given to the husband alone. 2. That she, with full knowledge that the materials, &c., were received unpaid for, and used for her property to the enhancement of its value, acquiesced in such use. 8 35. A ction against her for Necessaries.'] To charge her or her separate estate for family necessaries purchased while re- siding with her husband, there must be evidence, 1. Of her separate estate or business. 2. That the credit was given to her. 3. That she intended to charge her estate. 4. That the goods were suitable and necessary. 8 36. Action against her for fraud.'] The wife can take no advantage by a contract fraudulently made by her husband as her agent, in the use of her separate property ; 4 and such a fraud by her agent may be imputed to her, by the rules of evidence ap- plicable to transactions of principal and agent. 5 37. HusbancTs Coercion of wife.'] A woman sued for a tort is exonerated if she proves that she committed it by coercion of her husband. Physical compulsion need not be shown, but moral coercion, the immediate pressure of authority and intimidation ; and in this two elements are involved, 1 . His presence, 6 and 2. his direction. 7 His direction is not alone enough. 8 If his presence is shown, his direction or command is presumed, but this presumption is not conclusive. 9 The presumption of coercion may be rebutted by proof that she instigated the tort, or by other circumstances showing her independent and free concur- rence. 10 1 Burr v. Swrin, 118 Mass. 588. But both may be held jointly liable. Verill v. Parker, 65 Me. 578. * Miller v. Hollingsworth, 36 Iowa, 165. 1 Wells' Sep. Prop, of M. W. 465 ; Demott v. McMnllen 8 Abb. Pr. N. S. 335 ; Smith v. Allen, 1 Lans. 101. And see Schouler's Dom. R. 79. 4 Adams v. Mills, 60 N. Y. 533, affi'g 38 Super. Ct. (J. & S.) 16. 5 Vanneman v. Powers, 7 Lans. 181. Otherwise if the property was not her separate estate. Id. 56 N. Y. 42; Du Flon v. Powers, 14 Abb. Pr. N. S. 395. 8 It must appear that he wns present at the time or near enough to keep her under his immediate influence and control. Commonwealth v. Munsey, 112 Mass. 289, and cases cited. On the question of coercion in a particular net in hia absence, evidence of similar acts done by her in his presence and for the same pur- pose, is competent. Handy v. Foley, 121 Mass. 259. If he was present at some, only, of a series of acts, the presumption that the influence extended to all may be negatived by the circumstances. State v. Cleaves, 59 N. H. 298 ; and see Schouler's Dom. Rel. 104. ' Both are necessary. Cassin v. Delaney, 38 N. Y. 178. 8 Id. Contra, Reeve, Dom. Re 1 . 150; and see 2 Bish. Mar. W. 257. 9 Cassin v. Delaney (above); Schouler's Dom. Rel. 101. It is now regarded as a slight presumption, and may be rebutted by slight circumstances. APPLETON, C. J , State v. Cleaves, 69 Me. 298, s. c. 8 Am. R. 422. ; Formerly it was held conclusive. 1 Greenl. Ev. 28; 3 id. 3. 10 2 Whart. Ev. 1267; citing Marshall v. Oakes, 51 Me. 308. CHAPTER VII. ACTIONS AFFECTING PARTIES IN A JOINT OR COMMON INTEREST OR LIABILITY. 1. The general principle. 6. ^oint interest or liability. 2. Joint debtors. 7. joint promisees. 3. Defendants absent or defaulted. 8. Notice. 4. Admissions, f course, admissions and declarations may be competent against another than the de- clarant, by the rule ofresgestce, or if made in his presence, or if made in the course of duty, or against interest by a person since deceased, or may be received to dis- credit the declarant as a witness, or on other such special grounds. 8 Lenhart v. Allen, 32 Penn, St. 812. 4 Halliday v. McDougall, 22 Wend. 264, 270, and cases cited, 5 Boslwick v. Lewis, 1 Day (Conn.) 33 ; Daniels v. Potter, M. fc M. 601. Tenth Nat. Bk. v. Darragh, 3 Supm. Ct. (T. e testimony of a competent witness the court will not question his credibility, but leave it to the jury. Commonwealth v. Crowninshie'd, 10 Pick. 4!7. It seems to be treated as a question f'r the jury, in the fii st instance, in Pmns'/lvania, Helser v. McGrath, 58 Penn. St. 458; Kentucky, Oldharn v. Bentley, 6 B. Mon. 428, 431. 192 ACTIONS AFFECTING PARTIES IN A JOINT INTEREST. panied by instructions clearly pointing out the distinction be- tween evidence admitted for the purpose of establishing the con- federacy or other connection, and that which is to be considered only after the connection has been proved and found by them. The jury should also be instructed as to the persons who must be found united in the confederacy. 1 1 Wiggins v. Leonard, 9 Iowa, 194. But if there is any evidence to connect, it is not error to omit such instructions when they are not asked for. Boswell v. Black- man, 12 Geo. 691. If connection is disproved, it is error to leave the question to the jury. Page v. Scranton, 39 Me. 400. CHAPTEE VIII. ACTIONS BY AND AGAINST PUBLIC OFFICERS. I. GENERAL PRINCIPLES. II. ACTIONS BY OFFICERS continued. 1. Different proof of title, in different 11. Action for emoluments. cases. 2. Legal title. III. ACTIONS AGAINST OFFICERS. 8. Contracts in official capacity. 12. Plaintiff's pleading. 4. Acts by part of board or body. 13. Plaintiff's proof of official character 5. Demand and notice. of defendant or his deputy. 6. Former judgments. 14. Cause of action. 15. Return, as against the officer. II. ACTIONS BY OFFICERS. 16. Public action for refusal to serve. 7. Pleading by officer suing as such. 17. Pleading by officer defendant. 8. Proof of title. 18. Defendant's proof of official charac- 9. Process as supporting a cause of ter in justification. action. 19. Process as a protection to defead- 10. Return, adduced in his own favor. ant. I. GENERAL PRINCIPLES. 1. Different proof of title, in different cases.~\ There are three principal grades of proof of the official character of an al- leged officer, adequate in different classes of cases : 1. That he was officer de jure, that is, with legal title. 2. That he was officer de facto, that is, that he acted as such, with color of title, 1 though it may be without legal title. 3. That he assumed to act as such in the transaction in question, though it may be without color of title. It will be seen, in this chapter, that : 1. On an is- sue directly between the officer and the public, whether in an ac- tion by the State, or by or against other public officers, strict proof of title is necessary. 8 2. On an issue between third per- sons, or between them and the officer, or between them and the public, evidence that he was an officer de facto is always sufficient and conclusive against every party, and equally in favor of any party but the officer himself, 8 while, in his favor, it is commonly regarded as competent, for the purpose of raising a presumption that he was officer dejure. 3. On an issue between a third per- son and the alleged officer, evidence that he acted as such in the transaction is competent and usually conclusive evidence of his 1 To constitute color of office there must be some color of election or appoint- ment, or at least an exercise of the office, and a public acquiescence for a sufficient length of time reasonably to authorize the presumption of at least colorable elec- tion or appointment. State v. Carroll, 88 Conn. 449, s. o. 9 Am. R. 409, 427; Wil- cox v. Smith, 5 Wend. 231. 3 Paragraphs 8 and 13 below. Contra, 1 Greenl. T>. 115, 92. 8 The English rule, embodied in GreeuleaPs statement, allows this cvidoaca to be conclusive in favor of the officer. 13 [193] 194 ACTIONS BY AND AGAINST PUBLIC OFFICERS. official character, as against him ; and evidence that he was recog- nized as such by the other party, is competent and sufficient, though not conclusive evidence thereof, against such party. 2. Legal title.} Where legal title is in issue, and strict proof is required, the certificate of election or commission coming from the proper source, is presumptive evidence of his right to the office; 1 but it is only matter of evidence, and its exist- ence is not essential, unless made so by statute. 3 Thus, if the statute simply authorizes a judge to appoint without more, proof of writing, is not necessary, but proof of an oral appointment by some open, unequivocal act, is sufficient, and the subsequent failure to sign an order entered for appointment does not affect the title to the office. 8 If a writing exists, however, it should be produced as the best evidence, or should be accounted for, to lay a founda- tion for secondary evidence, in cases where strict proof of title is required. Where appointment must be proved, extrinsic evi- dence is inadmissible to show that Robert, the officer de facto, was the person intended to be appointed by the name of William, used in the commission. 4 Production of a certified copy of the appointment on file does not dispense with all proof of authen- ticity of the original. 5 If the statute requires a written oath to be filed, the taking of the oath cannot be proved by a memoran- dum at the foot of the commission, "sworn before me," with date and signature of the magistrate. 6 But a copy of the oath duly certified by the officer with whom it was duly filed, is com- petent. 7 Where it is necessary to show a vacancy to justify an appointment, it is enough to show that the office was, as matter of law, vacated by a prior incumbent, without proving that there was no other new appointment. 8 3. Contracts in official capacity.'] A contract made by a pub- lic officer, connected with a subject fairly within the scope of his authority, is presumed to have been made in his official capacity. 9 If the other party was aware of his official character, this pre- sumption arises, although he used language importing a personal promise, 10 and it is not necessary to show that he said he acted as 1 2 Dill. Mun. C. 807, 716, s. p. State ex rel. Leonard v. Sweet, 27 La, Ann. 541 ; Wood v. Peake, 8 Johns. 69. s Marbury v. Madison, 1 Cranch, 137 ; People ex rel. Babcock v. Murray, 6 Hun, 42. * Hoke v. Field, 10 Bush, 144, s. o. 19 Am. R. 68. As to mode of proving ap- pointment by vote of municipal body, see Canniff v. Mayor, 3. 18 People ex rcl. Kingsland v. Palmer, 62 N. Y. 83 ; People ex rel. Kingsland T. Bradley, 6 1 Barb. 228. 13 Doughty v. Hope, 3 Den. 249, 694 ; 1 N. Y. 79. 14 Doughty v. Hope (above). 196 ACTIONS BY AND AGAINST PUBLIC OFFICERS. 5. Demand and Notice."] A demand must be made in a rea- sonable and proper manner ; and if accompanied by gross rude- ness and insult, is not a legal demand ; but such misconduct does not justify the refusal of a subsequent proper demand. 1 Proof of the mailing of a letter to a public officer is not alone sufficient evidence of hotice of its contents. 3 Though, together with slight evidence of actual receipt, it may be sufficient. 6. Former Judgments.'] A former judgment does not neces- sarily bind the officer in a new action, unless he appeared in the same capacity in both. 8 Where an officer sues in his representa- tive capacity, the estoppel created by the judgment is available in favor of those whom ne represented, and the judgment is there- fore conclusive against him when they put it in evidence in their action against him. 4 II. ACTIONS BY OmcEES. 7. Pleading by officer suing as suchJ] In an action by a pub- lic officer in his official capacity, if he is named personally, the pleading must indicate that he sues officially. A mere addition of his title, without anything to indicate that he sues as such officer, is not enough. 5 But if it appears from the title or the body of the complaint that he complains as officer, a cause of action accruing to him in his official capacity, may be proved, 6 even though it arises under a statute authorizing him to sue on behalf of another person or bodv, and there is not express allega- tion that he sues for their benefit. 7 Unless the regular legal title is directly involved in the action, he need not aver the mode of acquiring the office, but may prove his official character under a general allegation that he is, and was at the times in question, such officer. 8. Proof of title. 9 ] An officer suing for moneys or property as to which his only title is by virtue 01 his office, as where he sues for public funds which he is to administer, must show a legal title to the office. 10 It is not enough that he is an officer de facto. According to the English doctrine, however, evidence that he was acting in the office is competent, and sufficient, at 1 Boyden v. Burlce, 14 How. U. S. 575, 683. s Huntley v. Whittier, 105 Mass. 391, s. c. 7 Am. R. 636. 8 See Rathbone v. Hooney, 58 N. Y. 463. 4 People ex rel. Knapp v. Reeder, 25 N. Y. 302, 804. 8 Thus, "John Doe, supervisor," ,tra, 8 Pick. 397. 8 Hyskill v. Givin, 7 Serg. o Bullis v. Montgomery, 50 N. Y. 352, rev'g in part, 3 Lans. 255. 9 Whitehead v. Keyes, 3'Allen, 495, s.c. 1 Am. L. Reg. N. S. 471, and note by Redfield. 10 Browning v. Hanford, 5 Den. 586, rev'g 7 Hill, 120 ; and see Splahn v. Gillespie, 48 Ind. 397, affi'g 1 Wils. 228. Contra, Freeman on Ex. 366. II Nelson v. Cook, 19 111. 440,455; and see Barker v. Binninger, 14 N. Y. 270. But once made, it may relate back to tho return day. Armstrong v. Garrow, 6 Cow. 465. 12 Glover v. Whittenhall, 2 Den. 633. 13 Bechstein v. Sammis, 10 Hun, 585. ACTION'S BY AND AGAINST PUBLIC OFFICERS. 201 duced ; l and it is not enough to prove that defendant was an officer de facto? 17. Pleading by officer defendant^ By the New York stat- ute, 8 in every action against a public officer for his official acts, though not in actions for nonfeasance, 4 the defendant may give special matter in evidence, under the general issue, without no- tice. When he pleads his justification, however, he must do so strictly. 5 18. Defendant's proof of official character in justification. If defendant, justifying as an officer, produces the record of his appointment by an authority having apparent jurisdiction, this is conclusive ; 6 and if there be no writing and none required by law, parol evidence is competent to prove the appointment. 7 But he need not prove that the appointing power was de jure. 9 Whether evidence that he himself was an officer de facto is enough, is disputed. 9 19. Process as a protection to defendant.'] Where the per- son against whom, or whose property, process, 10 or a warrant," or order, 12 has been issued by any tribunal or official body having jurisdiction of the subject, sues the officer for executing it, 18 the process, if fair on its face, 14 is a protection, and it is not necessary 1 Per SAVAGE, Ch. J., Dean v. Gridley, 10 Wend. 254. 8 Bentley v. Phelps, 27 Barb. 624. s. P. Green v. Burke, 23 Wend. 490. 2 R. S. 353, 15. 4 Fairchild v. Case, 24 Wend. 380 ; Persons v. Parker, 3 Barb. 249. 8 Lawton v. Erwin, 9 Wend. 233; Dennis v. Snell, 54 Barb. 441. So far as the latter case holds that new matter proved, though not pleaded, to avoid new matter in the answer, cannot be met by new matter not iu the answer, it is perhaps of doubtful Bound ness. ' Wood v. Peake, 8 Johns. 69 ; State ex rel. Leonard v. Sweet, 27 La. Ann. 541. 7 Hoke v. Field, 10 Bush (Ky.) 144. 8 Stevens v. Newcomb, 4 Den. 437. Three rules are asserted on this point : 1. That he must aver and prove that he was legally an officer, duly elected or appointed and qualified to act (Conover v. Devlin, 15 How. Pr. 478, and cases cited). 2. That he must at least show color of election or appointment from competent authority (State v. Carroll, 38 Conn. 449, s. o. 9 Am. 11. 409); and that this is prima facie sufficient for the protection of an officer defacto( Willis v. Sproule, 13 Kan. 257). 3. That he may prima facie establish his official character by proof of general reputation, and that he acted as such officer (!' Dill. M. C. 295, note, and cases cited; Colton v. Beardsley, 88 Barb. 29) in other matters besides those in question (Hutchings v. Van Bokkelen, 34 Me. 126). w Savacool v. Boughton, 5 Wend. 170, 180; Parker v. Waldrod, 16 Id. 514. 11 Chjgaray v. Jenkins, B N. Y. 376, 880. lf Erskine v. Hohnback, 14 Wall. 613. If the proceedings and order of a board of public officers, such as a board of health, are relied on as a justification in an act which, if without such justification, is a serious wrong, strict proof of the proceedings may be required. Meeker v. Van Kensselaer, 15 Wend. 397. Compare Chap. Ill, paragraphs 66-65. 12 The rule is the same as against voluntary assignees, who become such after a levy- Heath v. Westervelt, 2 Sandf. 110. ' 4 What is requisite to make it fair on its face within the rule, see, as to direction, Russell v. Ilubbard, 6 B;irb. 654; name of party, Farnham v. Hildreth, 32 Id. 277, 281; 1 Abb. New Caa. 309; alterations, Wattles v. Marsh, 5 Cow. 176; amendable 202 ACTIONS BY AND AGAINST PUBLIC OFFICERS. to give other evidence of jurisdiction of the person than the pro- duction of the process or order. 1 If process or a warrant signed by public officers, and produced as a justification, lack their offi- cial additions, parol evidence is competent to show that they actually held the offices by virtue of which they acted. And where jurisdiction may be impeached, it will usually be enough, for the purpose of protecting the officer, to show that the juris- diction al facts were duly alleged in the application, 2 unless the officer was the applicant ; 8 and that the process was issued by a person de facto, and with color of title, a magistrate such as has jurisdiction. 4 The process, even though it may not justify the taking, may be admissible in mitigation, to justify the entry for the purpose of taking. 5 'Where the act is sought to be justified by instructions from the head of an executive department, the court may presume in the officer's favor that the proper direc- tion was given by the chief executive. If the officer is sued for an act of subordinates, performance of which the facts show it to have been his duty to direct, the court may presume in his favor that the necessary request was duly given/ Where a third person sues the officer for enforcing against him process, or a warrant or order against another, the officer must produce the judgment, or other foundation of the process. 7 The process itself, and the record of the judgment or decree, if any, on which it was issued, are primary evidence ; and unless a foundation for secondary evidence is laid, they cannot be proved by testimony to their contents, 8 nor to an admission of their exist- ence by the adverse party. 9 defects, seal, etc., Dominick v. Backer, 3 Barb. 17; completeness, Prell v. McDonald. 7 Kans. 426; process functus officio, State v. Queen, 66 N. C. 615. 1 Unless, perhaps, where he "was the actor in promoting the illegal proceedings Leachman v. Dougherty, 81 111. 324. As to necessity of return, see 2 1'hil. Ev. bj Edw. 366 ; Sheldon v. Van Buskirk, 2 N. Y. 473, 476 ; but it is, it seems, unnecessary Id. ; signature essential, Barhydt v. Valk, 12 Wend. 143. * Whitney v. Shufeldt, 1 Den. 592. 3 An officer justifying under a summary proceeding in his favor, taken by an in ferior magistrate who was only authorized to act on complaint of a particular officer, must show that he was such officer. And plaintiff may prove that he was not Walker v. Moseley, 6 Den. 102. 4 Weeks v. Ellis, 2 Barb. 320; Wilcox v. Smith, B Wend. 283. 'Parker v. Waldrod, 16 Wend. 514; Paine v. Fair, 118 Mass. 74; Wilcox v Jackson, 13 Pet. 498. 8 Rankin v. Hoyt, 4 How. U. S. 327, 335. 7 Parker v. Waldrod, 16 Wend. 614; Jansen v. Acker, 23 Id. 480. And if he seizes under an attachment, he must show the attachment regularly issued. Noble v. Holmes, 5 Hill, 194. 8 Stebbins v. Cooper, 4 Den 191. Per THOMPSON, J., Jenner v. Joliffe, 6 Johns. 9. CHAPTEE IX. ACTIONS BY, AGAINST, OB BETWEEN PARTNERS. L ACTIONS BY PARTNERS. 1. Allegation of partnership. 2 Proof of partnership. 8, Parol evidence to vary the contract sued on. 4, Firm books as evidence in favor of the firm. 6. Declarations. 6. Defendant's evidence. 7. Matter in abatement. II. AtOTONS AGAINST PARTNERS. 8. Allegation of partnership. 9. Proof of partnership. 10. Best and secondary evidence. 1 1. Indirect evidence of partnership. 12. Holding out to the public. 13. Representations to particular cred- itor. 14. Admissions and declarations to prove partnership. 15. Hearsay. 16. Ownership. 17. Dormant and secret partners. 18. Community of profits ; the common law rule. 19. the English rule. 20. Evidence, in respect to date. 21. Assumption of debts by incoming partner. 22. Variance as to the number of part- ners. 23. Presumption of partner's authority. 24. Evidence as to the scope of the busi- ness, 8.~\ To charge a dormant part- ner with the others, the knowledge or ignorance of those dealing with the firm, that he was such, is wholly immaterial. It is enough to prove that he was actually a partner, 15 unless the con- tracting party had knowledge of the relation, and dealt solely on 1 Paragraph 11. 8 Bancroft v. Harworth, 29 Iowa, 462 ; and see Campbell v. Hastings, 29 Ark. 512. Strictly speaking, when there is prima facie proof of partnership as against the others, the declaration does not really corroborate it, as against the others; but it ceases to be error to receive it as against them. See Gardner v. Northwestern Mfg. Co. 52 111. 367. 3 Bowen v. Rutherford, 60 EL 41, s. c. 14 Am. R. 25 ; Brown v. Crandall, 1 1 Conn. 93. Such evidence, if competent at all, is so only for two purposes: 1. In cor- roboration of previous evidence. 2. To enow knowledge on the part of plaintiff. Not ns direct and principal evidence. Turner v. Mcllhaney, 8 Cal. 675. Even when admitted without objection, it is not alone enough to sustain a finding that partnership existed. But, if admitted without objection, it may be considered in connection with other evidence pf partnership. Halliday v. McDougall, 22 Wend. 264. It may be competent, where the partnership is not directly in issue, but only incidentally in question; as, for instance, when relied on as an excuse for not giving notice. Go wan v. Jackson, 20 Johns. 176. 4 Tumlin v. Goldsmith, 40 Geo. 221. B Hicka v. Cram, 17 Vt. 449. * Bowen v. Rutherford (above). 7 Union Bank v. Mott, 39 Barb. 180. 8 Campbell v. Hastings, 29 Ark. 512. ' For the distinction between partnerships and other associations, see Ebbing- housen v. Worth Club, 4 Abb. New Cas. 300, 308 note ; Raisbeck v. Oesterricher, Id. 847; Story on Partn. ch. xvi; 1 Wood's Coll. 9-48. 10 Thompson v. Bowman, 6 Wall. 316. 11 Such as a patent. Boeklen v. Hardenberg, 60 N. Y. 8, affi'g 37 Super. Ct. (J. uder. 17 Id. 666. 10 Deck v. Johnson, 1 Abb. Ct. App. Dec. 497; Second Nat. Bank v. Miller, 2 N. Y. S. Ct. (T. l. * Briggs v. Partridge, 64 N. Y. 362 ; 7 M. nec- essary to the complete proof of the act of the plaintiff in making the payment. 6 Unless the defendant is shown to have had access, and assented, liimes v. Barnitz, 8 Watts (Penn. ) 89, 47. 6 The law making parties competent does not exclude their books. ' Low v. Payne, 4 N. Y. 247; Veiths v. Hagge, 8 Iowa, 184 ; Maine v. Harper, 4 Allen (Mass.) 116. 24:6 ACTIONS FOR MONET LENT. own books are admissible for small sums, with certain suppletory proof. 1 The reason why the parties' own books are not admitted to prove loans is, that they are not the usual method of preserv- ing evidence of loans, and an exception, therefore, to the rule excluding them has recently been recognized in the C&se of the books of bankers and others, where there is evidence that the payment of money constituted, at the time the charges were made, the ordinary business of the party, and that the charges in question were made in the ordinary course of that business/ IT. Character in which the parties dealt.~] Where the action is by a person suing in his individual right, and the proof is of a debt due him in his representative capacity or conversely, the plaintiff cannot recover without an amendment in this respect, unless the case is such that a payment to the plaintiff will protect the defendant irrespective of the variance. 8 18. Connected and collateral agreements.'] "Where the loan was made upon a promise to repay or to give security for repay- ment, which is void by the statute of frauds, 4 as well as where a stipulation for a term of credit was obtained by fraud of the bor- rower, 5 or upon a condition which remains unperformed (as dis- tinguished from an alternative contract), 6 or upon a special agree^ ment for security which has been wholly rescinded by the parties, 1 the loan may be recovered without regard to the special agree- ment, and plaintiff may prove the fraud, etc., though not alleged, as part of the. res gestce* If the lender received a collateral security, this fact does not suspend his remedy ; 9 and, he need not prove an offer to return it before suit ; it is enough that he holds it ready to be surrendered ; 10 but, if it be negotiable paper, and indorsers or other parties contingently liable have been dis- charged, it must appear that they were not discharged by neglect, 1 See the chapter on SALES OF GOODS, Ac. 8 Cummings v. Hill's Adm'r, 35 Iowa, 253. But in the courts where such evidence SB received, it should appear that, from the nature of the transactions or course ot dealing, or other circumstances, that the case falls within the general principle which justihe-i the admission of the party's own books in other cases, namely, that better evidence is not obtainable. Younaj v. Jones, 8 Iowa, 219. 3 Thus, defendant cannot defeat a recovery by showing that the funds were held by the lender in a trust capacity, and that he had no power to loan them, unless de- fendant shows also that by reason of a successor in the trust having already been appointed, or otherwise, a payment to the plaintiff will not protect the defendant. See also chapters on EXECUTORS AND ADMINISTRATORS, OFFICERS, RECEIVERS, AND TRUSTEES. 4 Swift v. Swift, 46 Cal. 266 ; Binion v. Browning, 26 Mo. 270. 6 Nelson v. Hyde, 66 Barb. 59. 6 Bristow v. Needham. 9 Mecs. sw. 664; Arnold v. Crane, 8 Johns. 79. 8 Elder v. Rouse, 15 Wend. 218. 4 Culver v. Sisson, 3 N. Y. 264 ; Weed v. Covill, 14 Barb. 242 ; and see 1 Duer, 890. To the contrary, Coor v. Grace, 10 Smedes n v. Smith, CHASE, Ch. J., 8 Wall 1. e As to what kind of evidence of intention would suffice, see Confederate Note Case, 19 "Wall. 648, 659. Proof of promise to pay in Indian currency, no variance, under declaration alleging promise to pay in lawful money of Great Britain. Har- rin-ton v. MacMorris, 6 Taunt. 2'28. See, as to valuation, Story Confl. of L. 310; Rice v. Ontario Steamboat Co. 66 Barb. 384; Gunther v. Colin, 3 Daly, 125; Col- ton v. Dunham, 2 Pai^e, 2o7 ; Stranaghan v. Youman, 65 Barb. 392 ; R. S. of U. S. 35G4, 3505 ; Schmidt v. Ilerfurth, 6 Robt. 124. 1 As to distinction between loan and gift, see Hick v. Keats, 4 B. ke pays his neighbor's tax, this is a good consideration for a promise by the latter to repay. Nixon v. Jenkins, 1 Hilt. 318; but plaintiff must prove a legal tax. Weinberger v. Fauerbach, 14 Abb. Pr. N. S. 91. The de- fendant's promise to repay one who< volunteered to pay an execution may be im- plied from the defendant's insisting on the payment as satisfaction, and having the execution quashed in consequence. Roundtree v. Holloway, 13 Ala. N. S. 357. 10 As to what constitutes a moral obligation, see Gtmlding v. Davidson, 26 N. Y. 604, rev'g 28 Barb. 438, and cases cited ; "Freeman v. Robinson, 9 Vroom, 383. s. o. 20 Am. li. 3&9. If the original consideration was beneficial, and plaintiff w.ia le- 252 MONEY PAID TO DEFENDANTS USE. show an express promise, except where the only consideration was a moral obligation ; but the promise may be inferred by the jury from an account rendered to which no objection was made. 1 A promise made by one of several former partners after dissolution is not enough as against the others. 2 In the case of joint debtors not partners, a promise by one is not enough as against the others to revive a legal obligation once barred.* 5. AgenCs action against principal^ A request or agency is not presumed from the mere fact that plaintiff paid defendant's debt ; 4 and agency being shown, 5 the agent must show payments pursuant to his instructions or within his authority. In an action lor money paid he cannot recover for property bought by him- self as his own, and afterward transferred to account of his prin- cipal. 8 On the question whether the act of the agent was done gaily liable to pay, defendant's subsequent promise to repay will sustain an action, although it was made after he had once been wholly exonerated. Hassinger v. Solms, 5 S. t the resgestce does not have the effect, if the defendant was absent, to bind him as a representation by him, unless there is other evidence of the authority of the declarant to represent him. Second Nat'l Bank v. Miller, 2 Supra. Ct. (T. N. Y. 273. THE FACT OF SALE. 287 ceased, if against his interest when made, are competent in sup- port of plaintiff's title. 1 3. License to sell.'] Plaintiff will be presumed to have a license, if one be necessary to render the sale lawful. 2 But if the lack of one is shown, there is no presumption that one would have been taken out in time. 8 4. Ordinary sale ly delivery.'] The agreement, price and de- livery may all be proved by uncontradicted evidence showing an account rendered by plaintiff to defendant on the face of which he is charged as the buyer, and that he unqualifiedly admitted the justice of the demand. 4 Where the admission is susceptible of being understood as referring only to the correctness of items in description or price, other evidence of delivery of the goods must be adduced. Admissions as proof of either -separate fact will be further considered below. Under an allegation of sale and delivery to or by a party, evidence of the act on the part of his agent is admissible. 5 5. Evidence of express agreement.'] A witness testifying to a sale, can state it in general terms, subject of course to cross-exam- ination ; but cannot state his opinion or understanding, as dis- tinguished from his recollection or impression of the acts and conversation of the parties. 6 If it appear by the testimony that there was a written contract, it must be produced, or its absence accounted for, to open the way for parol evidence of its con- tents ; 7 and plaintiff must prove performance of its conditions. A mere receipt for price, though specifying the goods, 8 or for the goods, though specifying the price, is not the primary evidence 1 Thus in a broker's action, the declarations of the owner of the goods that he had sold them, and received the price from the broker as guarantor, are, after the death of the declarant, competent against the buyer, to show that the right of action was transferred from the declarant to the broker. White v. Choutean, 10 Barb. 202, a. P. in a further decision, 1 E. D. Smith, 493. 8 Smith v. Joyce, 12 Barb. 21 ; and see McPherson v. Cheadell, 24 Wend. 15 ; Thompson v. Sayre, 1 Den. 175. 3 See Kane v. Johnston, 9 Bosw. 154. 4 See Power v. Root, 3 E. D. Smith, 70; Jaques v. Elmore, 7 Hun, 675; K Y. Ice Co. v. Parker, 21 How. Pr. 802; Griffin v. Keith, 1 Hilt. 58; Webb v. Chambers, 3 Ired. (No. Car.) 374. This is the better opinion (see Pow. Ev. 226), although other proof of delivery has been sometimes required at circuit. 6 Sherman v. N. Y. Central R. R. Co. 22 Barb. 239. 6 Murray v. Bethune, 1 Wend. 191 ; and see on this distinction, 3 Abb. N. C. 229. % 7 Unless defendant's admission of its contents is received as primary evidence. Slatterie v. Pooley, 6 Mees. & W. 664. Compare Northrup v. Jackson, 13 Wend. 85. As to destruction of the instrument, see Tayloe v. Riggs, 1 Pet. 691 ; Steele v. Lord, 70 N. Y. 280, and cases cied. Items charged in an account as goods delivered on defendant's orders will not be presumed to have been delivered on written orders. Smith v. Joyce, 12 Barb. 21. 8 See Terry v. Wheeler, 25 N. Y. 620; but compare Bonesteel v. Flack, 41 Barb. 435, s. c. 27 How. Pr. 310. 288 ACTIONS FOR PRICE OF GOODS, Ac. of the contract, such as to render oral testimony secondary ;* nor is a memorandum of the terms of sale, made by one party, 2 or by a witness, 3 and not communicated to, or not assented to by the other as for instance where it was made by the broker of both merely for the purpose of preserving a charge of his commis- sions.* Evidence that the buyer, after receiving a written state- ment of terms, took possession of the property without dissent, shows an acceptance of, and acquiescence in the terms. 5 Where the contract refers to a written instrument not as embodying the contract, but for ascertaining some of the terms of the contract, it is not necessary to prove the execution of the latter in order to admit it in evidence in establishing the contract sued on ; but identifying it is enough. 6 A contract for a sale on fixed terms as to price or otherwise, is admissible under a general allegation of sale and delivery, &c., if all the conditions of the contract are fulfilled, and nothing remains but payment of the price. 7 A written contract is admissible under an allegation of the contract, not stating that it was in writing ; 8 and an allega- tion that there was a writing is not needed, even when the writ- ing is necessary by reason of the 'statute of frauds. 9 If the contract was in duplicate, the production of either one will be enough, if signed by the defendant, 10 without producing or accounting for the other. 11 If it consists of two or more parts, one containing the consideration for the other, both must be pro- duced or accounted for, unless the one is complete in itself. 12 An invoice is, alone, no evidence of a sale, 18 but may be made 1 Southwich v. Hayden, 7 Cow. 334. If the sale was of a note or other written evidence of debt, the rule does not require the production of the note, Ac. Lamb v. Moberly, 3 Monr. (Ky.) 179. 8 Meacham v. Pell, 6 1 Barb. 65. It is competent if it was communicated. Lath- rop v. Bramhall, 64 N. Y. 365. 3 Parsons v. Disbrow, 1 E. D. Smith, 547. 4 Gallaher v. Waring, 9 "Wend 28. 6 Dent v. K A. Steamship Co. 49 N. Y. 390. Compare 1 Wall. 359. 6 Smith v. N. Y. Central R. R. Co. 4 Abb. Ct. App. Dec. 262. 7 Moffett v. ^ackett, 18 N. Y, 522 ; Porter v. Talcott, 1 Cow. 359, and cases cited. And at common law this rule was applied where conditions not performed hnd been forfeited by the defendant. Corlies v. Gardner, 2 Hall, 345; Clark v. Fairchild, 22 Wend. 583. Otherwise now: see Oakley v. Morton, 11 N. Y. 25. Compare Holmes v. Holmes, 9 N. Y. 525, affi'g 12 Barb. 137. 8 See page 293 of this vol. ; and Tuttle v. Hannegan, 54 N. Y. 686, affi'g 4 Daly, 92. 1 Greenl. Ev. 86. 10 Stephen Di La Farge v. Rickert, 5 Wend. 187; Thorp v. Ross, 4 Abb. Ct. App. Dec. 416. ACTIONS FOR PRICE OF GOODS, Ac. 9. General rule as to proof of Usage.] The common law rule excluding oral evidence in modification of written, depends, so far as contracts are concerned, upon the presumption that the parties intended their writing to define their rights and liabilities, and adopted the writing because they did not wish to leave any question open to the uncertainty of memory. But in regard to commercial contracts, especially sales, the known and settled usages of business are relied on as a similar safeguard ; and from the brevity with which commercial contracts are despatched, in the ordinary course of trade, arises another counter presumption to the effect that the parties did not intend in their memorandum to express what is defined by the usages of the trade, but only those parts of the transaction which usage would not define, 1 together also with any stipulations by which they desired to depart from the usage, and mate for this transac- tion a different rule. The same principles are involved where a transaction is had orally, and usage is relied on to define its effect. Hence, the three chief rules as to what usage is provable to establish or vary a contract of sale. It must be, 1. A usage which the parties knew or ought to have known ; 2. one which is consistent with the general law merchant ; 2 and 3, not incompatible, either with the express terms of their contract, or the legal obligations which the law implies from those terms. One who is engaged in a trade or business is bound to know its usages at the place where he acts, and as against himself is presumed by law to have contracted with reference to them. 3 One who is not engaged in the business, but contracts with those who are, may be presumed, in the absence of evidence to the contrary, to have known its usages, and to have contracted with reference to them ; 4 but the presumption is not conclusive, and he may prove his ignorance, even by his own testimony. 5 Usage must be excluded, not only when adduced for the pur- pose of nullifying rules of law, but equally when offered for the purpose of establishing presumptively a stipulation which would be valid if expressly made, but which is contrary to the implica- 1 Hntton v. Warren, 1 Mees. Gray, .561 ; Benj. on S., 219, n. 6 Alsop v. Caines, 10 Johns. 396; affi'd, as Caines v. Brisban, J3 Id. 9. 6 Gardiner v. Davis, 2 C. See Chappell v. Dann, 21 Barb. 17. 9 Kirkpatrick v. Stainer, 22 Wench 244, 259, but see, contra, Story on A * Dana v. Fiedler, 12 K T. 40, affi'g 1 E. D. Smith, 463. 3 Cahen v. Platt, 69 N. Y. 348, 352 ; Belden v. Nicolay, 4 E. D. Smith, 14. 4 Dana v. Fiedler, and Cahen v. Platt (above). 6 Kountz v. Kirkpatrick, 72 Penn. St. 376, s. c. 13 Am. R. 687. Bnt the probable effect on prices, of throwing on the market so large a quantity as that contracted for, is not relevant. Dana v. Fiedler (above). 6 Dana v. Fiedler (above). 1 But the motives and interest of the parties, and other circumstances of the sale, may of course be inquired into and considered by the jury in determining the weight to be given to such evidence. Kingsbury v. Moses, 45 Jf. H. 222. b Thus where sales of such merchandise within two or three weeks of the precise day are shown to have been had, the market price running through two or three months should not be admitted. Dana v. Fiedler (above). On the other hand, in the case of second-hand household goods, the price they brought at auction within three months is relevant. Crounse v. Fitch, 1 Abb. Ct. App. Dec. 475. But if any- thing occurred in the interim materially affecting the value, it is competent for the adverse party to show it. Id. 9 Kerr v. McGuire, 28 N. Y. 446, 8. o. 28 How. Pr. 27. 10 See Cahen v. Platt, 69 N. Y. 348. II Id., and cases cited. Except when proper as corroborative. Gordon v. Bowers, 16 Penn. St. 226. THE FACT OF SALE. 309 controlling markets may be given, not for the purpose of estab- lishing the market price of such other place, but for the purpose of showing indirectly, in the absence of direct evidence, the market price at the place of delivery ; l and hence, in connection with market value at other places, evidence of the expense of transportation between such places is relevant. 2 Upon the same principle, if the plaintiff's proof of market value at the precise place is uncertain, evidence of the market value in an adjoining town easily and speedily reached, is competent. 8 The market value at a given time and place may be proved by evidence of actual sales then and there of merchandise of the same quality; 4 and a single sale 5 is relevant and admissible in the absence of better evidence, but not always alone sufficient to establish the market value. 6 For the purpose of proving the rates of a foreign market, statements and declarations of strangers to the action, engaged in that market, and made in the ordinary course of their business for example, merchants' letters offer- ing their goods at a price are competent evidence of the market value at the time the declaration was made, without proof of the death of the declarant. 7 22. Prices current.'] The price list or price current issued by a merchant or his agent in the ordinary course of business, 8 or corrected by him for a newspaper, 9 is competent evidence of market value as against himself. In the absence of better avail- able evidence, regular prices current or market reports, published in course, in a commercial journal pursuant to the professional duty of the journalist to ascertain constantly from those engaged in the market the actual current rates, and tabulate and publish them for the information and guidance of the commercial world, are competent prima facie evidence of the contemporaneous mar- ket price, on production of the newspaper or file, preliminary proof of these conditions, and of the identity of the paper, being given. 10 Without some extrinsic evidence of the sources of the information, or the mode in which the prices current were made up, the publication is incompetent. 11 1 Id., and cases cited ; Harris v. Panama R. R. Co. 58 N. Y. 660. 2 Wemple v. Stewart, 22 Barb. 154, and cases cited. 3 Siegbert v. Stiles, 39 Wis. 533. 4 See Lawton v. Chase, 108 Mass. 238. Compare Roe v. Hanson, 8 Lans. 304. Gill v. McNamee, 42 N. Y. 45 ; Dixon v. Buck, 4 Barb. TO. * See Crounse v. Fitch, 1 Abb. Ct. App. Dec. 475. 6 Graham v. Maitland, 6 Abb. Pr. N. S. 327, s. c. 37 How. Pr. 307; 1 Sweeny, 149. 7 Fennerstein's Champagne, 3 Wall. 149; 1 Greenl. Ev. 120. 8 Cliquot's Champagne, 8 Wall. 140. Henkle v. Smith, 21 111. 238. 10 Whelan v. Lynch, 60 N. Y. 469, 474; 1 Whart. Ev. 638, 674. So on the question of what was the market value, in France, of the champa, where a temporary memorandum, made by a witness who had since forgotten what was written, had been destroyed by another witness who in the course of duty transcribed it in more permanent form, the latter was permitted to produce his copy and testify to what he transcribed. Adams v. People, 8 Hun, 654. 3 This contemporaneous character is not always strictly to be required. 4 Sturm v. Atlantic Ins. Co. 38 Super. Ct. (J. 6 Penn. St 388, s. c. 5 Am. R. 373. 10 McParlin v. Boynton, 8 Hun, 449. 11 Sharpe v. Great Western Hw. 9 Mees some authorities, any proceeding in the cause, incontestably signed by the party (Northern Bk. v. Buford, 1 Duv. [Ky.] 835; Dunlop v. Silver, 1 Cranch C. Ct. 27; Shannon v. Fox, Id. 133). 8 Moore v. U. S. (above), (unless by consent, Kannou v. Galloway, 58 Tenn. 230). This rule has been applied also in Alabama, State v. Givens, 6 Ala. 747; Illinois, Bd. of Trustees v. Misenheimer, 78 111. 22; Kentucky, McAllister v. McAllister, 7 B. Mon. 269; Maryland, Tome v. Parkersburgh R. R. Co., 39 Md. 36, s. c. 17 Am. R. 640,661; Micfiiffan,\&n Sickle v. People, 29 Mich. 61; New Jersey, West v. State, 22 N. J. L. (2 Zab.) 212 ; North Carolina, Ot?y v. Hoy. 3 Jones, 407 ; Tennessee, Clark v. Rhodes, 2 Heisk. 206 ; Texas, Hanley v. Gandy, 28 Tex. 211 ; Virginia, Rowt v. Kyle, 1 Leigh, 216; West V. Clay v. Alderson, 10 W.Va. 49; Wisconsin, Pierce v. Northey, 14 Wis. 9. In Indiana (Burdick v. Hunt, 43 Ind. 281). writings, admitted to be genuine, are thus used. Writings proved or admitted are used for purposes of corroboration only, in Indiana, Clark v. Wygatt, 15 Ind. 271 ; but see 43 Id. 281; Pennsylvania, Hay- cock v. Greup, 57 Penn. St. 438 : Souffi Car., Bennett v. Matthews, 5 S. C. 478. 9 Strother v. Lucas, 6 Pet. 763; Woodard v. Spiller, 1 Dana. (Ky.) 179, 181. 10 Moody v. Rowell, 1 7 Pick. (Mass.)490,496. Contra, Travis v. Brown, 43 Penn. St. 9. 11 State v. Hastings, 63 N. H, 452. Contra, Huston v. Schindler, 46 Ind. 38. RULES APPLICABLE GENERALLY. 397 the witness is that of the person to whom it is imputed, when this is the question for the jury, the witness must know the handwriting, by means of knowledge such as are indicated above. 1 But an expert properly qualified, although he does not know the handwriting, may express an opinion as to the characteristics of the writing in evidence for instance, as to the age of the writing, and of the paper ; as to whether the writing is simu- lated or constrained, or natural ; 2 whether the whole was written at the same time, 3 by the same hand, 4 and with the same pen and ink; 5 whether it has been altered; 6 whether writing upon a crease in the paper was made before or after the crease ; 7 and whether writing upon an erasure was made before or after the body of the document was written, 8 and k> general as to all matters which require special skill and scientific research to discover and explain. 9 The grounds and reason of his opinion may be called for on direct as well as on cross-examination. 10 15. Matters of 'description.'] Beside the expression of opinion, a competent witness may describe the condition and appearance of the document, so far as material, for the purpose of having them stated in the record. 11 So one not an expert may, of course, testify to facts he observed, such as the apparent effect of a pow- der found on the alleged forger's person. 1 ^ 1 Paragraphs 8 and 9. This I understand to be the common law rule still in force in New York and some other States. Goodyear v. Vosburgh, 63 Barb. 156 ; Frank v. Chemical Bank, 87 Super. Ct. (J. & S.) 31 ; People v. Spooner, 1 Den. 543; Tome v. Parkersburgh R. R. Co. 39 Md. 36, s. o. 17 Am. R. 540; although the rule is not uniformly applied in practice. The rule is a proper corollary of that which ex- cludes comparison of hands ; for otherwise an expert might testify to an opinion formed on a comparison of hands out of court, and exclude the comparison from the jury. Contra, Moody v. Rowell, 17 Pick. 490 (the leading case in favor of expert opinions as to genuineness); Hicks v. Person, 19 Ohio, 426, 441 ; Withee v. Rowe, 45 Me. 571, 589 ; Woodman v. Dana, 52 Id. 9 ; and see Lyon v. Lyman, 9 Conn. 55; Travis v. Brown, 43 Penn. St. 9 ; and 5 Am. L. Rev. 238. s People v. Hewit, 2 Park Cr. 20. But the mere denial of a signature, without al- legation or evidence that it is simulated, does notjustify the admission of evidence that it is not simulated. Rowing v. Manly, 49 N. Y. 192, 203, s. c. li Abb. Pr. N. S. 276. 3 Dubois v. Baker, 30 N. Y. 355, 363, 365, affi'g 40 Barb. 556 ; Quinsigamond Bankv. Hobbs, 11 Gray, 250, 257. * State v. Ward, 39 Vt. 225, 236. But compare Lodge v. Phipher, 11 Serg. & R. 833 ; and Fulton v. Hood, 84 Penn. St. 365. 6 Fulton v. Hood, 84 Penn. St. 365. 6 Moye v. Herndon, 30 Miss. 110, 118. 7 Bacon v. Williams, 13 Gray, 525. Contra, Sackett v. Spencer, 29 Barb. 187. Unsound. 8 Dubois v. Baker, 30 N. Y. 355. But not whether erasures were made by a pe- culiar instrument found in the party's possession. Commonwealth v. Webster, 5 Cush. 295. 9 Frank v. Chemical Nat. Bk. 37 Super. Ct. (J. ck, 62 Mo. 70; Precluding interest ex- cept after maturity, Franklin Ins. Co. v. Courtney (Fnd. S. Ct. 1878), 6 Reporter, 712; compare Paramour v. Lindsey, 63 Mo. 63; Alteration in clause "without defalcation or discount," Hunt v. Gray, 35 N. J. L. 227; Inserting charge on separate estate, Taddiken v. Cantrt-11, 69 N. Y. 697; Erasure from priuted form, Corcoran v. Dall, 32 Cal. 82 ; Paramour v. Lindsey, 63 Mo. 63. For the rule as to sealed instruments, compare Little v. Herndon, 10 Wall. 31, and cases cited ; Smith v. U. S. 2 Id. 231, and see 1 Id. 282, and Ch. XLVIIl, paragraph 7. 1 Wilson v. Harris, 85 Iowa, 507. s Ilerrick v. Malin, 22 Wend. 388; Jackson v. Osborn, 2 Id. 565. 3 Contra, Hirschman v. Budd, L. R. 8 Ex. 171, 8. c. 6 Moats Eng. 361. 4 Smedbcrgh v. Whittlesey, 3 Sandf. Ch. 320. 8 Rose. N. P. 384. 6 Boomer v. Koon, 6 Hun, 645; Lincoln v. Lincoln, 12 Grav, 47. 7 Simpson v. Davis, 119 Mass. 269, 8. c. 20 Am. R. 324; Willett v. Shepard, 34 Mich. 106. 8 Ansley v. Peterson, 30 Wise. 653. 9 Abel v. Fitch, 20 Conn. 90, 97. 408 ACTIONS ON NEGOTIABLE PAPER. perts and those who are acquainted with the handwriting, may be examined. 1 Original memoranda or entries of the transaction are competent also, under rules already stated. 8 The fact that the defendant was the maker or indorser of other paper having a similar clause to the one alleged to be an al- teration, is not admissible in evidence, for the purpose of raising an inference that the clause was not an alteration. 8 The fact that the party to whom the alteration is imputed, was in embar- rassed circumstances, when he negotiated the paper, is not com- petent as tending to show that it was altered by him so as to in- crease its amount before negotiation. 4 Evidence that defendant has paid interest on the altered paper, is relevant to show con- sent. 9 Evidence that plaintiff demanded payment, is not neces- sarily a ratification of an unauthorized alteration made by a third person. 6 A general consent or authority to add or alter may be proved ; and it is not material that the maker was not informed what addition was made. 7 34. Blanks.'} Evidence that a party to the instrument in- trusted it to another, for use as such, with blanks not filled, is prima facie evidence of authority to complete it by filling them, but not to vary or alter its material terms by erasing what was written or printed as a part thereof, nor to pervert its scope or meaning by filling the blanks with stipulations repugnant to what was plainly and clearly expressed in the instrument; 8 and this authority enures to successive holders who take it with the blank unfilled ; 9 and evidence of the blank and of the filling of it, is admissible under an allegation describing simply the completed paper. 10 35. Marks of cancellation^ Lines cancelling the whole in- strument, 11 or the stamp " Paid," w raise a presumption of dis- charge ; but this may be rebutted. 18 The presumption of discharge I Paragraphs 8 to 17. If reliance is put on the fact that a part is in different ink from the rest, interrogate a witness as to the fact, so as to have it on the record. See Hardy v. Norton, 66 Barb. 528. 8 Kennedy v. Crandell, 3 Lans. 1 ; and p. 322 of this vol. 8 Iron Mountain Bank v. Murdock, 62 Mo. 70 ; Paramour v. Lindsey, 63 Id. 63. But he may be asked whether he ever made any such note whatever. First Nat. Bank of Pittsburgh v. Heaton, 6 Supra. Ct. (T. & C.) 37; Jourden v. Boyce, 33 Mich. 302. 4 Agawam Bank v. Sears, 4 Gray, 95. Rose. N. P. 383. 6 Laugenberger v. Kroeger, 48 Cal. 147, s. c. 17 Am. R. 418. 7 Taddiken v. Cantrell, 69 N. Y. 597. Compare Davidson v. Lanier, 4 Wall. 447. 8 Angle v. North-western Mutual Life Insurance Co. 92 U. S. (2 Otto), 330; Ab- bott v. Rose, 62 Me. 194, s. c. 16 Am. R. 427; lledlich v. Doll, 54 N. Y. 234. 9 Page v. Morrel, 3 Abb. Ct. App. Dec. 433 ; and see Spitler T. James, 82 Ind. 202, 8. c. 1 Am. R. 334, and note ; Michigan Bank v. Eldred, 9 Wall. 544 ; Davidson v. Lanier, 4 Wall. 447. 10 Rose. N. P. 852. II Pitcher v. Patrick, 5 Ala. (1 Stew. 5); and Went Virginia, (if the payee so elects, Burton v. Hansford, 10 W. Va. 470, 481); or aa a Guarantor, aa in England and in Arkansas, (if the payee overwrites n guaranty, Killian v. Ashley, 24 Ark. 515); California, (Pierce v. Kennedy, 5 Cal. 138 ; contra, Jones v. Goodwin, 39 Id. 493, s. c. 2 Am. R. 473) ; Connecticut, (Perkins v. Catlin, 1 1 Conn. 212 ; Ransom v. Sherwood, 26 Id. 437; Clark v. Merriman, 25 Id. 576); Illinois, (Webster v. Cobb, 17 111. 459, 465, and cases cited); Iowa, (by statute: Knight v. Dunsmore, 12 Iowa, 85); Kansas, (Firman v. Blood, 2 Kan. 496, 626); Kentucky, (by statute: Arnold v. Bryant, 8 Bush. 668); Nevada, (Van Doren v. Tjader, 1 Nev. 880, 887, 389) ; Ohio, (Champion v. Griffith, 13 Ohio, 228) ; Texas, Chandler v. Westfall. 30 Tex. 477) ; Virginia. (Watson v. Hunt, 6 Gratt. 033, 642; Orrick v. Colston, 7 Id. 189, 199) and West Virginia, (if the payee so elects. Burton v. Hansford, 10 W.Va. 470. 481). In New Jersey there seems to be no liability without extrinsic evidence. Cbaddock v. Van Ness, 35 N. J. L. 517, s. c. 10 Am. R. 256. 8 Good v. Martin (above) ; Austin v. Boyd, 41 Mass. 64 ; Parkhurst v. Vail, 73 III 343. ' Good v. Martin (above). MO ACTIONS ON NEGOTIABLE PAPER. and if it be attempted to charge the party as a guarantor, a dis- tinct consideration must appear. 1 To show that that which was presumptively an indorsement was, by intention of the parties, a guaranty to the payee, it is competent to prove the indorser's subsequent admissions of liability or promises to pay made to the payee/ provided the evidence satisfies the statute of frauds as to guaranties. Under these rules oral evidence is admissible to show that, in the intent and understanding of the parties, an indorsement made in fact after manual delivery, was made in pursuance of a pre- vious condition or understanding, such that it is to be referred back and take effect as if made before delivery. 8 The interpreta- tion ought to be such as to carry into effect the intent of the par- ties; and evidence of the facts and circumstances which took place at the time of the transaction are admissible to aid in the interpretation of the language employed. 4 100. Oral evidence to vary the ascertained contract.'] When the object and consequent legal effect of the indorsement have been thus ascertained, the same rules heretofore stated 5 exclude oral evidence of intention inconsistent with the legal effect of an indorsement, guaranty or joint promise, as the case may be. 6 VIII. DEFENSES GENERALLY. 101. Defenses available against all Holders, whether bona fide or otherwise.'] The following defenses may be' pleaded and proved against even an innocent holder for. value : 1. The fact that defendant had no legal capacity to make the contract alleged to have been made by him. 7 1 Good v. Martin (above), p. 98, citing Essex Company v. Edmunds, 12 Gray (Mass.) 272 ; "firewater v. Silence. 7 N. Y. 207. If the indorsement is shown to have been made prior to or contemporaneous with the delivery to the payee, or in pursu- ance of an agreement made prior to or contemporaneous "with the delivery, in consid- eration of which the payee agrees to accept it, a guaranty overwritten is a sufficient memorandum within the statute of frauds. Chaddock v. Van Ness, 35 N. J. 517, B. c. 10 Am. R. 256, and cases cited. But compare Van Doren v. Tjader, 1 Nev. 380. 2 Eilbert v. Finkbeiner, 68 Penn. St. 243, s. c. 8 Am. R. 176. It mi^bt be other- wise of promises, 56. 8 Otherwise if defendant put it in the power of the wrong-doer to alter, by deliv- ering the paper with blanks, arol evidence to identify the intent of the parties is admissible. Burr T. Broadway Ins. Co. 16 N. Y. 267. McMaster v. Ins. Co. of North America, 55 N. Y. 222, affi'g 64 Barb. 536. 6 Rose. N. P. 436. 6 Whether this is enough is disputed. Steel v. St. Louis Life Ins. Co. 5 Cent ACTIONS ON CONTRACTS OF INSURANCE. 485 13. Mistake.'} Under the new procedure, if the complaint alleges facts constituting a mistake, though without the formal allegation of mistake, and demands a reformation of the policy, parol evidence is competent to show that both the insurer and the insured meant to insure the thing lost, and meant to put into the policy no expression as to its character or situation different from the facts, but, by misconception as to language, they used terms expressing that which they did not, and failing to express that which they did intend. 1 Under allegations permitting him to prove mistake, plaintiff may show that he was thrown off his guard and dissuaded from a correction of the language of the policy by the acts or declarations of the agent of the insurer. 2 14. Usage.'] Ambiguous words in a policy may be construed by extrinsic evidence of accompanying circumstances and the usages of the business in which the property insured was em- ployed ; 3 but evidence of usage is not competent to vary or con- tradict what is expressed, nor even what is necessarily implied, 4 in unambiguous language. Yet it is competent, to show the course of trade and business to which the parties refer ; and when that is ascertained, the court must apply the language of the policy. To justify departure from the ordinary meaning of its language, a usage of language must be shown, from which the court may see that the phraseology used had, in the intent of the parties adopting it, a special or technical meaning. When this is shown, the court still apply the language of the policy, but apply it as thus understood/ When, however, the language, properly inter- preted, calls for a certain thing, evidence of usage of trade to suffer or be satisfied with something else, under that language, is L. J. 153; Ruse v. Mut. Benefit Life Ins. Co. 23 N. Y. 518 ; 24 Id. 653 ; and see 1C Alb. L. J. 175, and cases cited. According to settled general principles, it should be enough, if subsequent to the policy, thus bringing the case within the rules as to waiver and estoppel. See paragraph 22. 1 Maher v. Hibernia Ins. Co. 67 N. Y. 283, affi'g 6 Hun, 353. s Id. As to ignorance of fine print clause, see Ervin v. N. Y. Central Ins. Co. 3 Supm. Ct. (T. fe C.) 213. 3 N. Y. Belting Co. v. "Washington Fire Ins. Co. 10 Bosw. 428, and cases citea. 4 Hearno v. Marine Ins. Co. 20 Wall. 488. 5 Thus, respecting the phrase " glassware in casks," usage of trade-language may be proved to show that it means open casks (Bend v. Georgia Ins. Co. 1 N. Y. Leg. Obs. 12; 1 Greenl. Ev. 13 ed. 844); "bundles of rods" may be shown to include, in trade.usago, bar iron (Evans v. Commercial, include perishable roots such as sarsaparilla (Coit v. Com. Ins. Co. 7 Johns. 885); "skins" n> t to include furs (Astor v. Union Ins. Co. 7 Cow. 202); nnd that in a policy upon goods out, and upon their proceeds home, "proceeds" includes the same goods on the return voyage (Dow v. Whetten, 8 Wend. 160); and "brick buildings" may be shown to include buildings, the partitions separating which were of wood, filled in wish brick (Mead v. Northwestern Ins. Co. 7 N. Y. 530). But, on the other hand, under a policy on tackle, apparel, " boats," 6; Marshall v. Thames Fire Ins. Co. 43 Id. 586); Wisconsin, (Washington Union Ins. Co. v. Wilson, 7 Wise. 169; Blaeser V.Milwaukee Mech. Mut. Ins. Co. 37 Id. 31, B. c. 19 Am. II. 747); and by Dnxox, J., in the U. S. Cire. Court, Scott v. Home Ins. Co. 1 Dill. C. Ct. 105 ; see also Huchberger v. Merchants' Fire Ins. Co. 4 Bis*. C. Ct. 265; s. P. in other issues ; Michigan, (Walking v. Wallace [Fraud], 19 Mich. 57); New Hampshire, (Mathews v. Huntley [Slander], 9 N. H. 150; Folsom v. Brown [Slander], 5 Fost. N. H. 122); North Carolina, (Kincndo v. Bradshawe [Slander], 3 Hawks, 63); Wisconsin, (Wright v. Hardy [Fatal Malpractice], 22 Wise. 348). Contra, and requiring proof beyond reasonable doubt, are decisions in England, (Thurtell v. Beaumont, 1 Bing. 339; Steph. Dig. Ev. 98); Illinois, (McConnell v. Delaware, sumption is to arise, each case is to depend upon its own circum* stances. 3 In the absence of anything to indicate a special peril, the usual and not the utmost period of the voyage is to be con- sidered. 3 Evidence that when last seen the ship parted from convoy in a storm, will sustain an inference that she perished in that storm. 4 Evidence that after the time which plaintiff now assigns as the time of loss, he procured further insurance 5 or assumed to assign his interest in the ship, 6 is not conclusive against him. The protest of a mariner, even though not com- petent to prove loss, may be admissible to fix the time. 7 If loss of freight or passage money is in issue, the burden is on plaintiff to give some evidence that it would have been earned but for the casualty, 8 and could not be earned because of the casualty. 9 Protest, survey, 10 and log-book are not competent in favor of the insured, 11 unless authenticated by the testimony, 12 or called for by the adverse party. 13 Certificates under seal, by United States consuls, of copies of their official documents, are competent in the courts of the United States. 14 Experienced navigators, as well as shipwrights, are competent to express opinion on questions involving nautical skill, as to the nature and ordinary effects of the perils to which a marine loss is attributed. 13 40. Barratry.] To establish barratry mere negligence is not enough, but proof of a wrongful act willfully done by the master, with knowledge of its wrongfulness and constituting a breach of his duty, injurious to the freighters and ship-owners, is sufficient, although the master derived no benefit therefrom. 1 * 1 Koster v. Reed, 6 B. & C. 19. 8 Gordon v. Bowne, 2 Johns. 150; Oppenheim v. De Wolf, 3 Sandf. Ch. 671. On this subject, see p. 74 of this voL 8 Brown v. Neilson, 1 Cai. 525. 4 Watson v. King, 4 Camp. 272. 5 Brown v. Neilson, 1 Cai. 525. 8 Bunten v. Orient Ins. Co. 1 Abb. Ct. App. Dec. 257. 1 Ruan v. Gardner, 1 Wash. C. Ct. 145. Compare Miller v. South Carolina Ins. Co. 2 M'Cord, 336. 8 Ogden v. N. Y. Mut. Ins. Co. 4 Bosw. 447. 9 Id. ; Kinsman v. N. Y. Mutual Ins. Co. 5 Bosw. 460. 10 The survey is not essential Bentaloe v. Pratt, Wall. C. Ct. 68 ; Robinson v. Clifford, 2 Wash. C. Ct. 1. 11 Except to show the fact that they were made. Watson v. Ins. Co. of N. A. 2 Wash. C. Ct. 152. Compare Hathaway v. Sun Mut. Ins. Co. 8 Bosw. 33. 12 2 Pars. Mar. Ins. 520; Howard v. Orient Mut. Ins. Co. 2 Robt. 539. 13 Saltus v. Com. Ins. Co. 10 Johns. 487. " U. S. R. S. 896, 1707. 15 Walsh y. Washington Ins. Co. 32 N. Y. 427, affi'g 3 Robt. 202. Compare CinV cinnati Ins. Co. v. May, 20 Ohio,. 211, 223. Atkinson v, G. Western Ins. Co. 65 N. Y. 531 ; 4 Daly, 1. ACTIONS ON CONTRACTS OF INSURANCE. 501 HI. RULES PECULIARLY APPLICABLE TO LlFE AND ACCIDENT INSURANCE. 41. Disease / Death.] Death cannot be proved by the letters testamentary or of administration. 1 It may be presumed from absence without being heard from. 2 It may be proved by the official books of the boards of public officers having cognizance of deaths and casualties, kept pursuant to a requirement of law ; 8 and their production, with evidence that they come from the proper official custody, is enough without the oath of the officer keeping them. 4 That the death was by a peril within the policy may be inferred from circumstances. 5 Any observer of 'ordinary understanding is competent to testify whether one appeared sick or well. 6 Witnesses who had known the subject of insurance intimately down to the period when the policy was obtained, are competent to testify to his health and constitution. 7 Under the New York statute, 8 by which communications to physicians, clergymen and attorneys are to a certain extent privil- edged, a medical attendant of the insured is not competent against objection to testify to information acquired as necessary to enable him to prescribe, whether it be received from the patient himself, from observation or from the statement of other attendants. And affirmative evidence that it was acquired for the purpose of prescribing is not necessary, if the relationship raise a presumption. 9 42. Suicide and insanity.'] On the question of suicide, the surrounding circumstances, and the declarations of deceased made shortly before death and indicating intent, are competent ; 10 but not the mere fact that he was an atheist. 11 On doubtful facts, the presumption is against suicide. 12 I Page 100 of this vol. ; Thompson v. Donaldson, 3 Esp. 63. s Page 73, n v. Crosby, 9 Hun, 870. The defendant is not necessarily entitled to read the testimony contained in the record in support of impeachment. Tappan v. Beardsley, 10 Wall. 427. 10 Hill v. Mendenhnll, 21 Wall. 455. 11 Kinsey v. Ford, 38 Barb. 195. 19 Briggs v. Bowen, 60 N. Y. 454. 13 Carpenter v. Goodwin, 4 Dalv, 89. Contra, Kinsey v. Ford, 38 Barb. 195. 14 McKnight v. Dunlop, 4 Barb" 36 ; Niles v. Totraan, 3 Id. 594. 1& Mitchell v. Hawley, 4 Den. 414, and cases cited. " Runyan v. Weir, 8 N. J. L. (Halst.) 286. 11 Miller v. Smith, 16 Wend. 425, 445, rev'g 14 1:1. 188. 18 Booth v. Fanners' 5. Including courts of the United States. Buford v. Hickman, Hempst. 232. A judgment of a State court may be thus proved although at the time the judgment was rendered the State was in secession. Steeve v. Tenney, 50 N. H. 461. But the effect of such judgment ia another question. Pennywit v. Kellogg, 1 Cin. Super. Ct. 17 ; Penny wit v. Foote, 27 Ohio St. 600. The question of full faith and credit is another matter. 8 Upham v. Damon, 12 Allen, 98 ; s. P. Clemmer v. Cooper, 24 Iowa, 185. Com- pare Aldrich v. Chubb, 35 Mich. 350. 4 A copy from the minutes is not admissible tinder the act. Pepin v. Lachen- meyer, 45 N. Y. 27 ; Ferguson v. Narwood, 7 Cranch, 408. 6 U. S. R. S. 905. 8 Van Storch v. Griffin, 71 Penn. St. 240; Bissell v. Edwards, 5 Day Conn. 363 ; Martin v. Wells, 43 Vt. 428. 1 Duvall v. Ellis, 13 Mo. 203 ; Catlin v. Underhill, ,4 McLean, 199. 8 Kirkland v. Smith, 2 Mart. La. N. S. 497; Harper v. Nichol, 13 Tex. 161; Phelps v. Ti'.ton, 14 Ind. 222 ; Geron v. Felder, 15 Ala, 304. 9 Thomas v. Tanner, 6 Monr. 52 ; Capen v. Emery, 5 Mete. (Mass.) 436 ; Man- . ning v. Ilogan, 26 Mo. 570. J Darrah v. Wilson, 36 Iowa, 116; Gatling v. Robbins, 8 Ind. 184. ACTIONS ON JUDGMENTS. 543 judge 1 showing the transfer of jurisdiction and change of name and seal, is sufficient prima facie, on those points, without other proof of the law. 2 But this is not essential. The court may even presume a change in the legislative apportionment of districts, in order to render the record and the certificate consistent. 3 19. Clerk's attestation.'] The clerk's attestation is to be in a form sanctioned by the local law under which he acts ; but the judge's certificate is conclusive evidence that it is so. The use o r the word " record " is not essential. 4 It need not certify to the official character of the judge who authenticates the clerk's attes- tation; 5 but so doing does not prejudice. 6 An attestation signed by a deputy clerk is not sufficient, although the deputy clerk be authorized by the law of the State to certify, 7 and the judge's certificate states that he is. 8 20. Seal.] The seal should be affixed to the clerk's attesta- tion or to the.record itself ; rather than to the judge's certificate attached. 9 If there be no seal that fact should be stated in the certificate of the clerk or judge. 10 A statement in an attestation expressed to be by the clerk of the court, that it is the seal of his office as such, sufficiently imports that it is the seal of the court. 11 21. Judges certificate^ The certificate of the judge is indis- pensable ; 12 and should be annexed to the copy record. 13 The rec- ord or certificate must indicate that the certifying officer was the judge, chief justice or presiding magistrate. 14 His description as such appearing either upon the record or the certificate, is enough. 15 If it appear either by the certificate or the record that there was more than one judge, it must also appear that the certifying judge was the chief justice or presiding magistrate 16 of the court, 17 or was a legally equivalent officer, 18 or that there was no such of- I Capon v. Emery (above). * Gatling v. Robbing (above). 8 Hatcher v. Rocheleau, 18 N. Y. 86. * Grover v. Grover, 30 Mo. 400. 6 Gavit v. Snowhill, 2 Dutch. 76. 8 Young v. Chandler, 13 B. Mon. 252. * Lathrop v. Blake, 3 Penn. St. 383. Contra, Greasons v. Davis, 9 Iowa, 219. 8 Morris v. Patchin, 24 N. Y. 894. * See Turner v. Waddington, 3 Wash. C. Ct. 126. 10 Kirkland v. Smith, 2 Mart. La. N. S. 497 ; Alston v. Taylor, 1 Hnyw. (Tenn.) 885. 11 Clark v. Depew, 25 Penn. St. 509; Coffee v. Nealy, 2 Ueisk. (Tenn.) 304. 19 Hutchins v. Gerrish, 52 N. H. 205, s. c. Am. R. 19, and cases cited; Barbour v. Watts, -2 Mars'i. (Xy.) 290 ; Craig v. Brown, Pet. C. Ct 352. 13 Norwood v. Cobb, 20 Tex. 588. 14 Kirkhnd v. Smith, 2 Mart. La. N. S. 497 ; Settle v. Alison, 8 Geo. 201. " Mudd v. Beauchamp, Litt. Sel. Cas. 142. 18 Stephenson v. Bannister, 3 Bibb (Ky.) 369. II Settle v. Alison, 8 Geo. 201 ; Allen v. Allen, Min. (Ala.) 240. 18 A description that imports merely the fact of having presided (Stephenson v. Bannister, 3 Bibb [Ky.], 369) ; or of seniority (Id.); or of being the presiding magis- trate of the county, not of the court (Settle v. Alison, 8 Geo. 201). is not enough. But a de scrip tiun which is apparently a legal title of the head of the court, such as 544 ACTIONS ON JUDGMENTS. ficer. 1 If there is nothing in the record or certificate to indicate that there was more than one judge of the court, it will not be presumed that there was another ; out a certificate by the judge, whether stating that he is sole judge 2 or not, 8 is admissible ; and the law of the State may be produced to show whether there was more than one, 4 and whether there was a chief justice or pre- siding magistrate. 5 It is essential that the certificate state that the attestation of the clerk is in due form. 6 On this point it is conclusive. 7 The certificate itself is presumptive proof of the official char- acter of the certifying magistrate. 8 It need not certify to the clerk's official character, 9 nor to his signature, nor to the seal. 10 The fact that its date is later than that of the clerk's attestation is held not an objection, even though it state that the clerk is clerk, not that he was. 11 22. Presumption in favor of jurisdiction.] Xhe whole rec- " President" of the court, is (Gavit v. Snowhill, 2 Dutch. 76. Contra, Hudson T. Daily, 13 Ala. 722). So if the court is chancery, tho chancellor's certificate is enough (Scott v. Blanchard, 8 Mart. La. N. S. 303). 1 Slaughter v. Cunningham, 24 Ala. 261. 8 Van Storh v. Griffin, 71 Penn. 240; Pearl v. Wellmann, 3 Gilm. 311. 8 Central Bank v. Veasey, 14 Ark. 672; Butler v. Owen, 2 Eng. (Ark.) 369. 4 Bennett v. Bennett, Deady, 299. 6 Foster v. Taylor, 2 Overt. (Tenn.) 191, and see Huff v. Campbell, 1 Stew. or of negligence. 1 An uncertainty on the face of the complaint as to which of these is the gist of the action, is to be determined by the court with reference to the rules affecting variance. 2 2. Contract of laitment.~] If the action is for a wrongful use contrary to express contract, proof of the contract is necessary. 8 A written contract may be proved, under a general allegation not indicating writing. 4 Evidence of the bailee's uniform usage to give a written receipt expressing terms of bailment, may be sufficient to require foundation to be laid before admitting oral evidence of terms. 5 A mere receipt not expressing terms, is not the exclusive primary evidence of the delivery. 3. Oral evidence to vary writing.'] The general rule already stated, 6 protects written instructions, 7 and words of contract con- tained in a receipt, 8 if binding as a contract. A stipulation to re- turn cannot be varied by oral evidence of contemporaneous agree- ment as to risk ; 9 but a mere memorandum of length of time and rate of payment, does not exclude a separate oral agreement as to risk ; 10 nor does a written power exclude evidence of a separate and not inconsistent u agreement as to the conditions, in respect to time, price, &c., on which it might be executed. 13 A receipt ex- pressed to be for storage, cannot be shown by parol to represent a sale. 13 A mere receipt without indicating the nature of the 1 These principles I deem sufficiently settled under the new procedure ; although not hitherto universally recognised. The modes of proving negligence and con- version respectively, are stated in other chapters. 8 See pp. 273, 285 of this vol. and the chapter on actions for DECEIT. 3 Smith v. Rollins, 1 1 R. I. 464, s. o. 23 Am. R. 609. * Fiedler v. Smith, 6 Cush. (Mass.) 336, 340. 5 Ashe v. DeRosset, 8 Jones (N. Car.) L. 240. 6 Pages 294, 364, of this vol. * Richardson v. Churchill, 6 Cush. 426 ; Dunlop v. Monroe, 7 Cranch, 242. 8 Stapleton v. King, 33 Iowa, 28, s. c. 11 Am. R. 109, and cases cited; Wood v. "Whiting, 21 Barb. 190. 9 Brown v. Hitchcock, 28 Yt. 452. 10 Jeffrey v. Walton, 1 Stark R. 267. 11 Dykers v. Allen, 7 Hill, 497, affi'g, 3 Id. 593; Vail v. Rice, 8 N. Y. 155; Mark- ham v. Joudon, 41 N. Y. 23-1, rev'g, 49 Barb. 462, s. o. 3 Abb. Pr. N. S. 286. 19 Clarke v. Meigs, 10 Bosw. 337. 13 Wadsworth v. Allcott, 6 N. Y. 64. 554 ACTIONS AGAINST BAILEES, Ac. transaction may be explained or contradicted. 1 A warehouse re- ceipt is usually subject to oral explanation unless plaintiff has made advances or incurred responsibility on the faith of it. 2 If the terms of the receipt are ambiguous, 3 as for instance "re- ceived on account of A. [the plaintiff], for B." evidence of usage is admissible to explain. 4 4. Plaintiff* s title' Bailees estoppel^ The plaintiff's title is sufficiently proved by the contract. A bailee, or agent, cannot dispute the original title of the bailor or principal from whom he received the thing ; 5 even by purchasing an adverse title. 6 But he may show that his bailor parted with his interest in the prop- erty subsequent to the bailment. 7 5. Eviction.] Eviction by title paramount or its equivalent, suffices to terminate the relation of bailee which raises this estop- pel ; but notice of adverse claim does not. 8 Even where the action is on a contract, 9 the better opinion is that the bailee is excused by showing that without his fault, act or connivance, the thing was seized and taken from his possession, by virtue of regular and valid legal process, 10 out of a court having jurisdiction, 11 either against the bailor, 12 or a third person, 13 and that he gave immediate notice to the bailor. 14 In such case he is not bound to show the merits of the claim, or correctness of the decision on which the process was founded, 15 but only its regularity and validity. The process itself is the primary evidence, and the oral admission of the plaintiff is not a substitute for it. 16 1 Robinson v. Frost, 14 Barb. 536. * Second Bank of Toledo v. Walbridge, 19 Ohio St. 419; Bebee v. Moore, 3 McLean, 387. Compare Peck v. Armstrong, 38 Barb. 215; Hoyt v. Baker, 15 Abb. Pr. N. S. 405; McCombie v. Spader, 1 Hun, 193. 3 Agawam Bank v. Strever, 18 N. Y. 502; Harris v. Rathbun, 2 Abb. Ct. App. Dec. 326. 4 Bowman v. Horsey, 2 M. , ; Citizens' Bank v. Nantucket Steamboat Co. 2 Story C. Ct. 16. 14 Spade v. Hudson River R. R. Co. 16 Barb. 383. 13 Butler v. Hudson River R. R. Co. 3 E. D. Smith, 571. 14 "Wilcox v. Chicago, dc. R. R. Co. 6 Reporter, 114; Glasco v. N. Y. Central R. R. Co. 33 Barb. 657. 15 Croukite v. Wells, 32 N. Y. 247. COMMON CARRIERS OF GOODS. 565 them to take particular property for carriage, takes it as their servant ; and the fact that they allowed him to retain the com- pensation does not rebut this presumption, without evidence that the credit was given to him by the owner of the goods. 1 24. Implied contract^ Evidence that the goods were deliv- ered on board is sufficient to charge the carrier without showing a bill of lading or other express agreement made. 2 25. Address / Instructions ; "C. 0. 7?."] The address maybe proved by a witness without producing the writing. 3 It is prima facie evidence of instructions to deliver or forward accordingly. 4 Instructions or remonstrances as to care, communicated to the defendants or their proper servant, by the plaintiff or his agent, 5 are competent, as charging them with notice of their duty. 6 A mistake, even in written instructions, drawn up by defendant's agent, contrary to the previous oral agreement, may be proved by parol. 7 The mark " C. O. D." may be explained by oral evidence of usage not inconsistent with it. 8 26. Express contract.'] A contract, if alleged as the founda- tion of the action, must be proved, and negligence not alleged may also be proved ; 9 but without proof of contract, negligence in gratuitous carriage is not enough. 10 Omission to allege special exemptions in the contract is not material, unless there is evi- dence to bring the case within an exemption. 11 The bill of lad- ing or receipt, unless admitted in pleading, must be proved to have been executed on defendant's part, before it can be put in evidence. It is proved by evidence of the signature, 12 and of the authority of the agent if signed by agent. 13 In addition to the general principles already stated, 14 it should be observed that if duplicate bills of lading or contracts are given, the one signed by defendant and delivered to plaintiff is the primary evidence in 1 Farmers, e mode of proving signature, see pp. 891-8 of this voL Armstrong v. Farg->. 8 Hun, 145; and see The Colombo, 3 Blatchf. 521. "Paragraph 23. M Paragraphs 2 and 8, and 2L 566 ACTIONS AGAINST BAILEES, io); or that a verbal contract with- out limit was made, and that tho receipt was afterward given to a clerk who had no authority to make a contract (Fillebrown v. Grand Trunk 11 w. 55 Me. 462 ; s. p. 100 Mass. 605). But it has been recently held that he should show that, as soon as he had time to ascertain its contents, he returned it to the carrier with notice of his non-acceptance. Louisville, , 465. 6 Boscowitz v. Adams Express Co. 5 Cent. L. J. 58, and cases cited. 6 Ma^nin v. Dinsmorc, 42 N. Y. Super. Ct. (J. fe S.) 612; Boscowitz v. Adams Express Co. 5 Cent. L. J. 68; Little v. Boston tates court rule. 85. the Massachusetts rule. 86. the New York rule. 87. Disproving contributory negli- gence. 88. Contributory negligence of in- fants. 39. Effect of peril on witnesses. 40. Damages. 41. Loss of earnings. 42. Suffering, and impaired powers. 43. Continuing effect. 44. Testimony ot the party. 45. Expressions ot suffering. 46. Opinions of witnesses. 47. Plaintiff's family and circum- stances. 48. Defendant's wealth. 49. Exemplary damages. 50. Action for causing death. II. DEFENSES. 51. Disproof of negligence. 52. Advice. 53. Former acquittal. 54. Plaintiff's contributory negli- gence. 65. Plaintiff's conduct illegal. 56. Mitigation. I. GENERAL RULES. 1. Burden of proof *.] The burden of proof, that the injury resulted from negligence on the part of defendant, is upon the plaintiff. 1 1 Nitro-Glycerine Case, 15 Wall. 524 ; Holbrook v. Utica . 693; Kearney v. London, Brighton, Ac. Ry. Co. L. R. 5 Q. B. 411 ; L. R. 6 Q. B. 759; Clare v. Nat. City Bank, 1 Sweeny, 539; Weitner v. Delaware A Hudson Canal Co. 4 Robt. 234; Kendall Y. City of Boston, 118 Mass. 234, s. c. 19 Am. R.446; Byrne v. Boadle, 2 II. A C. 722; Scott v. London, St. Kath. Docks Co. 3 Id. 596; Jager v. Adams, 123 Mass. 26. Pire. Lansing v. Stone, 37 Barb. 15. Gas escaping. Shearm. & Red. on Neg. 340; Lannen v. Albany Gas L. Co. 44 N. Y. 459, 46 Barb. 264; Parry v. Smith, 41 L. T. R. N. S. 93. 6 First Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 278, 296 ; Warner v. N. Y. Central R. R. Co. 44 N. Y. 465, rev'g 45 Barb. 299; Robinson v. Fitchburgh, Ac. R. R. Co. 7 Gray (Mass.), 92, 95. Passenger thrown from horse car by driver's suddenly stopping. Ma^uire v. Middlesex R. R. Co. 115 Mass. 239; Miss. C. R. R Co. T. Miller, 40 Miss. 45, 47. But it may be admissible in rebuttal of defendant's evidence of general care (Detroit, Ac. R. R. Co. v. Van Steinburgh, 17 Mich. 99, 111), or to repel an inference of accident (1 Whart. Ev. 47, 38). ' Sherman v. Kortright, 52 Barb. 267; Jacques v. Bridgeport, Ac. R. R. Co. 41 Conn. 61 ; and see Bailey v. Trumbull, 31 Conn. 681. 8 As, for instance, that it commonly frightened other horses than plaintiff's. House v. Metcalf, 27 Conn. 631, 636; Hill v. Portland, Ac. R. R. Co. 65 Me. 438, 443; Darling v. Westmoreland, 62 N. H 401. The competency of such evidence has been much contested. Compare Collins v. Dorchester, 6 Cush. 396. It would cer- tainly be competent to prove by an expert, that at a time either before or after the GENERAL RULES. 585 had notice of its existence, 1 or proving a frequency of occurrence which repels all inference of accident. 2 Evidence of disaster at another time, or another similar place, if adduced, is not compe- tent for the purpose of proving dangerousness, unless it shows that all material conditions were the same. 8 8. Time of existence of defect.'] Evidence of the existence of the defect to which plaintiff attributes the disaster, is not con- fined to the very time of the disaster, 4 but the limit of time de- pends on the nature of the structure and of the defect. 5 If one party, without objection, gives evidence overstepping these limits, the other may rebut by similar, but not greater liberty. 6 9. Other defects.'] The mere existence of defects in a struc- ture at other places than that where the casualty occurred, as, for instance, a defect in track half a mile away from the scene of a railway wreck, is not evidence that a similar defect existed at the place of the casualty, and caused it. 7 10. lncompetency.~] Evidence of negligence having been given, the incompetency or unskillfulness of the actor may be proved. 8 11. Reputation^] Evidence of general reputation for negli- gence is inadmissible to prove negligence upon a particular occa- sion. 9 12. Intemperance. ,] Intoxication is competent, but not con- clusive 10 evidence of negligence. 11 Evidence of the intemperate disaster, when the defect which is alleged to have caused it, was in no worse state than at the time of the disaster, he examined and experimented with it, and found it capable of producing the like disaster ; hence there seems no reason for excluding ordinary experience when offered within the same limits and for the same purpose. Such evidence is sometimes admissible merely to show what called the attention of witness to the defect. Tomlinson v. Town of Derby, 43 Conn. 562. 1 Mobile. ), 291. Contra, Hull v. Richmond, 2 Woodb. & M. 337; Beardsley v. Swann, 4 McLean, 333. Applied also in Alabama (Smoot v. Mayor. &c. 24 Ala. 112). California (Gay v. Winter, 34 Cal. ! 53). Georgia (n. 3, below). Kentucky (P. & M. R. R. Co. v. Hoeh'l, 12 Bush, 41). Mary/and ( Northern Cent. Ry. v. State, 31 Md. 357). Minnesota (Hocum v. \Yitherick, 22 Minn. 152). Missouri (Thompson v. North Mo. R. R. 51 Mo. 190). New Hampshire (White v. Concord R. R. Co. 30 N. II. 188, 207; Smith v. Eastern R. R. Co. 35 Id. 356, 366). New Jersey (Durant v. Palmer, 29 N. J. L. [5 Dutcher], 244 ; N. J. Express Co. v. Nichols, 33 Id. [4 Vroom], 434). Ohio (Cleveland, > Tex. 356; contra, Walker v. Ilerron, 22 Id. 55); and Wisconsin (Hoyt v. Hudson, 41 Wis. 105, s. c. 22 Am. R. 714 ; Prideaux v. City of Mineral Point, 43 Wis. 513). Wharton approves presuming plaintiff's freedom from negligence, in the absence of all evidence on the point. Whart. on Negl. 425. 3 Applied also in Georgia (Brannan v. May, 17 Geo. 136; Campbell v. Atlanta R. R. Co. 53 Id. 488 ; contra, Thompson v. Cent. R. R. 64 Id. 509). Illinois (Dyer v. Talcott, 16 111. 300; Galena, . 62 Barb. 364, 379, and cases cited ; 53 Jf. Y. 28. Contra, Covington St. Ry. Co. v. Packer, 9 Bush (Ky.), 455, s. o. 15 Am. R. 752. 3 T. W. & W. R. R. Co. v. Baddeley, 54 111. 19, s. o. 5 Am. R. 71. 4 Sheehan v. Edgar, 58 N. Y. 681, and cases cited. 6 Caldwell v. Murphy, 1 Duer, 233 ; 11 N. Y. 416 ; T. W. & W. R. R. Co. v. Bad- deley, 54 111. 19, s. c. 5 Am. R 71. As, for instance, that in the ordinary course of nature and without extrinsic superinducing cause, they will probably be fatal (T. W. f past fact within the rule, compare Taylor v. Grand Trunk Ry. 48 N. H. 304; Cleveland v. N. J. Steamboat Co. 5 Hun, 523, 529. s See Tilson v. Terwilliger. r>6 N. Y. 273 ; People v. Davis, Id. 96. 3 People v. Williams, 8 Park. Cr. 84, 100. 4 Howe v. Plainfield, 41 N. H. 135 ; Perkins v. Concord, te 10 on p. 116, and following notes. 11 Compare People v. Rector, 19 Wend. 569; People v. Bodine, 1 Den. 281, 311; Gardiner v. People, 6 Park. Cr. 615 ; Kennedy v. People, 39 N. Y. 245, s. c. f> Abb. Pr. N. S. 147; Roberts v. Johnson, 58 N. Y. 613, affi'g 37 Super. Ct (5 J. ach, 52 Ala. 613. 19 Fitchburgh R. R. Co. v. Freeman, 12 Ofrav. 40 I. 80 Id. 608 ACTIONS BY AND AGAINST SHERIFFS, rocess is not material, unless rendering it void. 1 Even re- 13. or process versal of the judgment does not necessarily exonerate the officer. 3 A general question as to the manner of escape is irrelevant, unless counsel states an intention to show facts which would ex- cuse the officer. 8 A voluntary return is not admissible under a general denial. 4 In an answer of voluntary return, an allegation that prisoner continued in custody to time of suit brought, is immaterial, though put in issue. 5 The sheriff can justify under a discharge by showing that the court had jurisdiction. The regularity of the proceedings is not material. 8 If the jurisdictional facts" do not appear by the reci- tals in the discharge, they may be proved aliunde. 1 As to damages, in the case of negligent escape, 8 or of escape from mesne process, 9 it is competent to give in evidence the circumstances of the debtor, in order to limit the recovery to what the plaintiff has actually lost. 10 Insolvency of the debtor, though not pleaded, may be proved in mitigation. 11 General reputation of insolvency is inadmissible. 12 14. Action for failure to return.'] Plaintiff is, prima facie, entitled to recover the whole amount due on his judgment, upon proving the judgment, 13 the delivery of the writ to the defendant to be executed, together with his neglect to return it. 15 The na- ture of an action against an officer for neglect to return an exe- cution is sufficient notice to defendant to produce the execution. 16 That the officer had sufficient time to proceed under the writ, may be inferred from circumstances. 17 It is best to give some evidence of failure to return. 18 Yery slight evidence is enough 1 Jones v. Cook, 1 Cow. 300; Ross T. Luther, 4 Cow. 158, 163 ; Ontario Bank v. Hallett, 8 Cow. 192. Compare Carpeutier v. Willet, 1 Abb. Ct. App. Dec. 312. 8 Smith v. Knapp, 30 N. Y. 581. a Fairchild v. Case, 24 Wend. 381. 4 Rowland v. Squior, 9 Cow. 91. 6 Middle District Bank v. I >eyo, 6 Cow. 732. 6 Cantillon v. Graves, 8 Johns. 472 ; Wiles v. Brown, 3 Barb. 37 ; Bush v. Petti- bone, 5 Barb. 273. 1 Bullymore v. Cooper, 46 N. Y. 236, modifying 2 Lans. 71. 8 Patterson v. Westervelt, 17 Wend. 546, and cases cited. Compare N. Y. Code Civ. Pro. 158. 10 Smith v. Knapp, 30 N. Y. 581, 592. As to the mode of proving: insolvency, see the next chapter. As to the test of pleading, distinguishing between this action and that on the officer's liability as bail, compare Smith v. Knapp, 30 N. Y. 581 ; Metcalf v. ^tryker, 31 N. Y. 255; People v. Dikeman, 3 Abb. Ct. App. Dec. 520; Bensel v. Lynch, 44 N. Y. 162, affi'g 2 Robt. 448. 11 Barnes v. Willett, 35 Barb. 514. 19 Fairchild v. Case, 24 Wend. 381. 384. 13 See, as to the mode, Chapter XXIX; Cornell v. Barnes, 7 Hill, 35. 14 See paragraphs 6 and 15. 15 Pardee v. Robertson, 6 Hill, 550. 16 Story v! Patten, 3 Wend. 486 ; Wilson v. Gale, 4 Id. 623. 11 Wilson v. Gale, 4 Wend. 623. 18 That this is unnecessary was held in State v. Schar, 60 Mo. 893. ACTIONS BY AND AGAINST SHERIFFS, Ao. 611 to shift the burden of proof. It is not necessary to show the collection of money, 1 nor the existence of property out of which it might have been collected ; 2 but this may be proved if alleged. 3 Plaintiff need not show that the debtor had property. 4 Prima facie the measure of damages is the amount required to be raised by the execution ; 5 but the officer may show that the debtor had nothing from which the money could have been made ; 6 or any- thing which attacks the judgment ; or shows that plaintiff's in- terest is affected. 7 In rebuttal plaintiff may show that the debtor had property, though this be not alleged. 8 Tardy return is no defense. 9 15. for false return.] The judgment must be proved ; 10 or, in fhe case of mesne process, the original cause of action ; u and the issue, delivery and return of the process. 13 The identity of the process is sufficiently proved by the officer's indorsement on it (made under the statute 18 ) and his return, and proof of his acts intermediate these times, without extrinsic evidence of manual possession by the officer at the time of acting under it. 14 A return amended by leave of court, though after action commenced, may be read in evidence with the same effect as if an original return. 1 ^ JPlaintiff must give some evidence of falsity ; 16 but slight evi- dence suffices to throw on defendant the burden of proving its truth. 17 To prove falsity of a return of nulla fiona, the debtor's possession of property is, prima facie evidence of ownership, until the officer gives evidence of title, or at least of some adverse 1 Sloan v. Case, 10 Wend. 370. * Pardee v. Robertson, 6 Hill, 550. 8 Stevens v. Rowe, 3 Den. 327. Compare Ledyard v. Jones, 7 N. Y. 550. * Pardee v. Robertson (above). B Ledyard v. Jones, 7 N. Y. 550. Dunphy v. Whipple, 25 Mich. 10 ; Swezey v. Lott, 21 N. Y. 481. For the mode of proof, see next chapter. 1 Wehle v. Connor, 69 N. Y. 546, 549, rev'g 41 Super. Ct. (J. mpaml with Brown v. Bennett, 5 Cow. 181 ; Collier v. Moulton, 7 Johns. 109 ; \Vilmarth v. Babcock, 2 Hill, 194. '* Murphy v. Dart, 42 How. Pr. 31 ; Jewctt v. Banning, 21 N. Y. 27, affig 23 648 ACTIONS FOR ASSAULT AND BATTERY. 5. Intent or motive.] As a general rule, plaintiff must be prepared with evidence either that the intention was unlawful, or that defendant was in fault. 1 But the unlawfulness may have been unknown to defendant. 8 Declarations by the one who com- mitted the assault, if forming part of the res gesto&, are competent for this purpose. 8 So are his previous threats, 4 but subsequent threats are not competent. 5 6. The res gestce of an assault."] In the case of bodily injury the res gestce include the statements of the cause of injury made immediately upon and in view of its occurrence, and the suffer- er's expressions of feeling made while the consequences were subsisting and in progress. Jt is not essential that the main fact to which they relate should be instantly contemporaneous with the declarations. It is enough that the two were so intimate- ly connected in point of time and by the circumstances of mental excitement or bodily suffering, that it cannot be presumed that the speaker had time to contrive or devise anything for his own advantage. 6 On the other hand, if there has been lapse of time, 7 or change of place and of interlocutors, 8 and particularly if some other inci- dent has intervened, 9 subsequent declarations, though connected in subject and apparently following as the effect upon its cause, are not competent, except as against the declarant. Acts and declarations of bystanders called forth by the prin- cipal fact in evidence, are competent, upon the same principle and within the same limits. 10 Barb. 13. As to the competency of evidence of previous exhibitions of strength by the wrong-doer, see Darling v. Westmoreland, 52 N. H. 401, s. c. 13 Am. R. 65, and cases cited. 1 BREESE, J., Paxton v. Boyer, 67 HI. 132, s. c. 16 Am. R. 615. 8 See, for instance, Elder v. Morrison, 10 Wend. 128. 8 United States v. Omeara, 1 Cranch C. Ct. 165. 4 See pp. 630, 535 of this vol. 6 Newman v. Goddard, 3 Hun, 70; Handy v. Johnson, 6 Md. 450, 463. 6 As, for instance, what a wife said, immediately after a battery and wounding of her. Thompson v. Trevanion, Skinner, 402. Or that a man found injured and groaning in the street, said he had just been run over by a cab which the witness saw driving rapidly away. King v. Foster, 6 Carr. & P. 325. Or that a man return- ing to his bed-room at night, said he had fallen down ptairs when alone. Ins. Co. v. Mosley, 8 Wall. 405. Or that a wife who ran from her room in the night wounded and bleeding, said, on taking refuge in nnother room, that her husband had stabbed her. Comm. V. Jl'Pike, 3 Gush. 181 ; hherley v. Billings, 8 Bush, 147, s. c. 8 Am. R. 451 ; Castner v. Siiker, 83 N. J. L. 95. Otherwise of conversation after the combat was over. Halloway v. Halloway, 1 Monr. 132. For other illustrations, see Stone v. Segur, 11 Allen, 568; Norwich Transportation Co. v. Flint, 13 Wall. 3, affi'g 7 Blatchf. 536. 7 As where a night has intervened ; Spatz v. Lyons, 65 Barb. 476; or some hours of the day-time. Rosenbaum v. The State, 33 Ala. 354, 361. 8 Aa where after an assault, and after obtaining a warrant, plaintiff met witness to whom the declarations were made at a different spot from that of assault, Cberry T. McCall, 23 Geo. 193. Or where afi.er the assault the witness followed defendant from the room, and reproached him out of doors, where the declarations were made. Handy v. Johnson, 5 Md. 450, 463. 9 See pages 538, 589 of this vol. 10 Norwich Transportation Co. v. Flint, 13 WalL** affi'g V Blatchf. 536. 5 ** ACTIONS FOR ASSAULT AND BATTERY. 649 But in admitting declarations nnder the rule of the res gresta, narratives of past facts are excluded. 1 7. Criminal conviction.'] The conviction of defendant on a criminal prosecution for the same assault, if founded on a plea of guilty, is competent to show guilt. 2 So is such a plea, with only the indictment to which it was pleaded. 3 But a conviction not founded on such a plea is not competent. 4 8. Admissions and declarations.'] Defendant's silence, when charged with the wrong, is competent against him. 5 The fact that declarations were dying declarations is not ground of admit- ting them in a civil action. The rule as to admitting the declarations and admissions of one wrong-doer, as evidence against another, has already been stated. 7 When evidence has been given that a party to the action once attributed the injury to another cause than that to which he has testified, it is competent to show, in corroboration of his testi- mony, that no such other cause ever existed. 8 9. Requisite cogency of evidenced] The weight of American authority is that plaintiff is not required to prove the charge beyond a reasonable doubt. 9 A seaman suing his officer must make out a clear case, by credible and consistent proof. 10 10. The injury and damages.'] The opinions of witnesses as to the extent of the injury are competent, within limits already stated. 11 So, also, of the declarations of the plaintiff as to suffer- ing. 13 If exemplary damages are claimed, all the circumstances im- mediately connected with the transaction, tending to exhibit or explain the motive of the defendant, are admissible in evidence. 13 Special damages should be alleged in order to be proved, and 1 This is the New York rule. More latitude is given in some other jurisdictions, upon the principle that what characterizes the act with motive and purpose, should not be excluded merely because it states that which is past. 8 2 Whart. Ev. 783 ; Green v. Bedell, 48 N. H. 546. 8 Corwin v. Walton, 18 Mo. 71 ; Birchard v. Booth, 4 Wig. 67. 4 Rose. N. P. 221. It may sometimes be admissible as evidence of reputation. Id. 221, citing Petrie v. Nuttall, 11 Exch. 669. For the mode of proving the con- viction, see Chapters XXIX and XL1. 6 Jewett v. Banning, 21 N. Y. 27, affi'g 23 Barb. 13; Kelly v. People, 55 N. Y. 665. Even though it appear that on a previous occasion he denied it. Jewett v. Banning (above). ' Spatz v. Lyons, 65 Barb. 476. 7 Page 190 of this vol. ' 8 Melhuish v. Collier, 15 Q. B. 878; 8. p. Wrege v. Westcott, 30 N. J. L. 212. 9 Pago 495 of this voL ; Elliott v. Van Buren, 33 Mich. 49, s. c. 20 ADO. R. 668. Whether, as held in this case, a preponderance of evidence is sufficient, see note on p. 495 of this vol. 10 Benton v. Whitney, Crabbe, 417. 11 Page 60i> of this vol. ; Anthony y. Smith, 4 Bosw. C03. " Page 599 of this vol.; Elliott v. Van Buren, 33 Mich. 49; Towle T. Blake, 48 N. II. 92; Earl v. Tupper, 45 Vt. 275 ; Aveson v. Kinnaird, 6 East, 191, approved in 8 Wall. 406. As to mental suffering, compare Ford v. Jones. 62 Barb. 484. " Voltz v. Blackmar, 64 N. Y. 440; Sampson v. Henry, 11 Pick. 879. 650 ACTIONS FOR ASSAULT AND BATTERY. are not admitted by failure to deny. 1 Circumstances of aggra- vation known to defendant, and indicating malice, such as plaint- iff's illness at the time, are competent for the purpose of ag- gravating the damages, though not alleged as special damages. 8 11. Defense: Justification.] Justification must be specially pleaded. 8 In justifying under a reasonable regulation of a corpo- ration who employed defendant, it is not necessary for the defend- ant to give positive proof that the regulation was made by the directors, or the general superintendent. Proof of the existence of the regulation is enough in the first instance. 4 The mode of proving possession of property, 5 and of justifying under legal process, 6 has already been stated. Plaintiffs threats, while resist- ing the execution of process, are competent against him. 7 12. Plaintiff the aggressor.'] The fact that plaintiff was the aggressor must be proved by the defendant if relied on by him. 8 The fact that the assault was committed in defending himself or his property, or that of others intrusted to him, against plaintiff as a trespasser seeking forcible possession, is relevant, both -on the question of intent to do bodily harm, and on the question of the degree of force justifiable. 9 13. Provocation.'] Defendant may show, in mitigation or bar of exemplary damages, but not in bar of the action, 10 that the plaintiff provoked the assault ; u but not unless the provocation was so recent, or continued to so recent a time, 12 or had so re- cently come to defendant's knowledge, 18 as to induce the pre- sumption that the violence was committed under the immediate influence of the passion thus wrongfully excited. 14 The fact that plaintiff and defendant fought by agreement, or mutual consent, is not a bar to the action, but may be proved in mitigation. 15 For the same purpose defendant may show that he acted under an honest belief that he was justified in doing the act complained of, or under the impulse of sudden passion or alarm excited by the conduct of the plaintiff. 18 1 Molony v. Dows, 15 How. Pr. 261, and cases cited. * Sampson v. Henry, 11 Pick. 379. 8 Coats v. Darby, 2 N. Y. 617; Poland v. Johnson, 16 Abb. Pr. 235. 4 Vedder v. Fellows, 20 N. Y. 126. 6 Pages 623 and 635 of this vol. 6 Page 631. 7 Fulton v. Staats, 41 N. Y. 498. 8 Stevens v. Lloyd, 1 Cranch C. Ct. 124. 9 Filkins v. People, n v. McCuuley, 1 Abb. Ct. App. Pec. 282, s. c. 2 Abb. Pr. N. S. 29, rev'g 38 Barb. 413 ; Palmer v. Andrews, 7 Wend. 142. 9 Id. ; Kniffen v. McConncll, 30 N. Y. 235. 10 Irving v. Greenwood, 1 l'ar;\ B 1 Whart. Ev. 65, 51. le 1 Whnrt. Ev. G5, 51. " Bracy v. Kibbe, 31 Barb. 273; Dodd v. Norris, 3 Campb. 519. ACTIONS FOR SEDUCTION OR ENTICING AWAY. 683 his seduction of her. Defendant is not bound by her answers as to such matters on cross-examination. 1 If defendant gives general evidence of bad character for chastity, before the alleged wrong, plaintiff may rebut it by general evidence of good character. 2 8. Defense."] Plaintiff's consent or connivance is not admis- sible as a bar, unless pleaded. 3 An offer of marriage is not ad- missible in mitigation. 4 1 Hogan v. Cregan, 6 Robt. 138. 8 Pratt v. Andrews, 4 N. Y. 493, 495, and cases cited. 8 Travis v. Barger, 24 Barb. 614; but see Chapter on GRIM. CON. * Ingersoll v. Jones, 5 Barb. 661, especially if made after suit brought. White v. Murtland, 71 111. 250, s. c. 22 Am. R. 100. CHAPTER XLYI. ACTIONS FOR CRIMINAL CONVERSATION. 1. Competency of witnesses. 6. Loss of consortsbip : Damages. 2. Marriage. 6. Defenses, 8. Affection and domestic happiness. 7. Character. 4. Criminal intercourse. 1. Competency of witnesses.'] Plaintiff is a competent wit- ness for either party, 1 subject to the restrictions as to disclosing confidential communications already stated. 2 His wife is not a competent witness for him, 3 but is now competent for defendant, with somewhat similar restrictions. 4 Defendant is a competent witness for plaintiff, subject to his privilege from criminating himself 5 in those jurisdictions where adultery is a crime. He is competent as a witness on his own be- half ; but, if called, it is usually with the effect of waiving his privilege on cross-examination. 6 2. Marriage.'] Marriage must be proved by direct evidence. 1 ' Permanent separation by a valid agreement, so that the husband 1 He was incompetent at common law, on grounds of public policy independent of his incompetency as a party. Rex v. Luffe, 8 East, 1 93 ; Dennison v. Page, 29 Penn. St. 420, 423 ; Ratcliff v. Wales, 1 Hill, 63. And in those States where the statute only removes the incompetency of parties, it is the better view that the hus- band is still incompetent in his own favor in this class of actions. Manchester v. Manchester, 24 Vt. 649 ; Dwelly v. Dwelly, 46 Me. 377 ; Hasbrouclc v. Vandervoort, 9 N. Y. 153; p. 166 of this vol. note. On the injustice of admitting the one when the other cannot be admitted, see Baylis v. Baylis, L. R. 1 Pr. & D. 395 ; Conradi v. Conradi, Id. 514; Harding v. Harding, 4 Sw. & Tr. 145, 149 ; Blackborne v. Black- borne, L. R. 1 Pr. SUR f , 19. Mortgagor and mortgagee. JJ" orec o;ure J veud . or 8 hen ' 20. Vendor and purchaser *?' * l f. ^?. r .^- 21 Entry Defendants liability: demand 22! Title by descent or devise. n * nd default ' 23. Dower. 44 ' ^/""^ 24. Curtesy. 25. Title under ancient instrument. V. ACTIONS TO REDEEM. 26. Lost instrument, and secondary 4 5. Mode of proof. evidence. 27. Presumed grant. VI. ACTIONS OF PARTITION. 28. Deed void For adverse possession. 46. Mode of proof. I. ACTIONS TO RECOVER THE POSSESSION OF REAL PROPERTY. (EJECTMENT.) 1. Plaintiffs title.] Plaintiff can only recover on the strength of his own title. Proof of a cloud on title is not enough. 1 The failure of defendant to show title can not avail. 2 Under the new procedure plaintiff may recover on an equitable title. 3 He may prove two titles, although either, if established, 1 Pixley v. Rockwell, 1 Sheld. Buff. Super. Ct. 267. 9 Brady v. Hennion, 8 Bosw. 528 ; Tyl. Ej. 72 ; "Watts v. Lindsey, 7 Wheat. 158. 8 Phillips v. Gorham, 17 N. Y. 270; Lattin v. McCarty, 41 N. Y. 107, rev'g 8 Abb. Pr. 225, 8. c. 17 How. Pr. 239; Sheehan v. Hamilton, 4 Abb. Ct. App. Dec. 211. Otherwise at common law. Fenn v. Holme, 21 How. U. S. 481. [691] 692 ACTIONS AFFECTING EEAL PROPERTY. would be enough. 1 A variance in alleging the nature of the title,' or the proportion of plaintiff's interest, is not fatal. 3 2. Title of State. In ejectment by the State, evidence that the premises were vacant and wholly unoccupied at a time within forty years before action brought, and that defendant was in pos- session when the action was brought, is prima facie sufficient, 4 if it does not appear that the title of the State was ever di- vested. 5 3. \Possession as evidence of title.'] Mere general possession of land, unexplained, is prima, jade evidence of ownership, 8 in the absence of any other evidence as to title ; especially if coupled with actual improvement. 7 But to raise a presumption of any particular kind of title or degree of interest, the evidence of pos- session must be coupled with evidence of a claim of title. 8 A wit- ness may be allowed in the first instance to testify directly to the fact of possession, 9 if he can do so positively not as a matter of opinion, subject, of course to cross-examination on the details. Evidence that a place was generally known by the name of a man is competent in aid of other evidence of his possession. 10 "When no legal title is shown, the party showing the prior possession is held to have the better right. 11 Mere possession may be rebutted by parol evidence of abandonment, 1 * but the evidence should be clear. 13 When legal title to unoccupied land is shown, possession is presumed to be in him who is shown to have the title. 14 This is constructive possession, and does not avail where actual posses- sion must be shown. 15 I Enders v. Sternbergh, 2 Abb. Ct. App. Dec. 31, rev'g 52 Barb. 222. 9 Chapman v. Delaware, Vall. 636. Even though at the grantor's re- quest. Bulkley v. Bnffington, 5 McLean, 457. 8 See Parmelee v. Simpson, 5 Wall. 81, 85. Gould v. Day, 94 U. S. (4 Otto), 405. As to the declarations of a former owner, see paragraph 30, and p. 405 of this vol. 10 Jackson v. Perkins, 2 Wend. 308 ; Younge v. Guilbeau, 3 Wall. 636, 641. For other cases on presumption of delivery, eee Rogers v. Carey, 47 Mo. 232, s. c. 4 Aui. R. 322. 11 Roberts ads. Jackson, 1 Wend. 478, 480 ; Stephens v. Buffalo attorney or agent, Ford v. James, 2 Abb. Ct. App. Dec. 169; Watkins v. Nash, L. R. 20 Eq. Cas. 262, s. c. 13 Moak Eng. R. 781. 18 Worrall v. Munn, 5 N. Y. 229, and caa. cit. EJECTMENT. 695 an earlier date *) ; and, in the absence of other evidence, the date written in 2 an attested or acknowledged instrument 3 is presump- tively the date of delivery, 4 notwithstanding its acknowledgment, 8 or its record 6 is of later date. If the deed is shown to have been antedated (and the fact that it remained in the grantor's hands after the day of its date is suf- ficient evidence of this 7 ), the presumption is removed, and the burden is on the party claiming under it to show the date of delivery, if the validity or effect of the deed depends on that. 8 Slight evidence drawn from the transaction itself may be suffi- cient for this purpose. 9 6. parties. 10 ] In addition to what has been said as to the proof of identity, 11 it should be added here, that if there are two persons, father and son, of the same name, the use of the name without addition means presumptively, in absence of other evi- dence, the father; 13 but this presumption may be rebutted by showing that the parties intended the son by the name in the deed. 13 A difference in surname, too great to be disregarded as involving no substantial difference in sound, cannot be cured by parol evidence, 14 unless the evidence is sufficient for relief in equity. 15 Omission of middle name is not material. 16 1 County of Calhoun v. American Emigrant Co. 93 U. S. (3 Otto), 124, 127. 1 Or a later date inscribed by the grantor upon the stamp for cancellation. Y^n Rensselaer v. Vickery, 3 Lans. 57. s Otherwise of a deed in fee, unattested and unacknowledged. Center v. Morrison, 31 Barb. 155. 4 Robinson v. Wheeler, 25 N. Y. 262, and cases cited ; People v. Snyder, 41 N. Y. 897, affi'g 51 Barb. 689. 8 People v. Snyder (ab'ove). * Robinson v. Wheeler (above). 7 Harris v. Norton, 16 Barb. 264. * Costigan v. Gould, 6 Den. 290. 9 McOowan v. Smith, 44 Barb. 232 ; Jackson v. Schoonmaker, 2 Johns. 230. Whether the date in a deed by an entire stranger to the parties is sufficient when the competency of the instrument in evidence depends on the time of tho delivery, compare with these cases, pp. 13 and 14 of this vol. "> Whether showing that the grantee's name was not inserted in the blank until after attestation and acknowledgment and parting with possession by the grantor, affects the validity of the deed, aee, for the affirmative, Upton v. Archer, 41 Cal. 85, s. c. 10 Am. R. 266 ; Moore v Bickham, 4 Binn. (Pa.) 1 ; U. S. v. Nelson, 2 Brock. 6 ; Coit v. Starkweather, 8 Conn. 289: Davenport v. Sleight, 2 Dev. , Vnn Etta v. Evenson, 28 Wis. 33. s. c. 9 Am. R. 486; Owen v. Perry, 25 Iowa, 412; Pence v. Arbuckle, 22 Minn. 417; McNab v. Young, 81 111. 11; Heminenwuy v. Unlock, 50 How. Pr. 88 ; Vanderbilt v. Vanderbi t, 54 Id. 250; nnd see Field. v. Stagir, 62 Mo. 634, s. c. 14 Am. R. 435 ; Preston v. Hull, 23 Graft. (Va.) 600. Page 101 of this vol. 12 Padgett v. Lawrence, 10 Paige, 170 ; Stevens v. West, 6 Jones (N. C.) L. 49. 13 Padgett v. Lawrence (above). 14 Jackson v. Hart, 12 Johns. 77; and see Jackson v. Boneham, 15 Id. 226; Bab- cock v. Pettibonc, 12 Blatchf. 354. 15 Sec p. 512, and Chapter on REFORMATION for MISTAKES, AQ 16 Games v. Dunn, 14 Pet. 322. C96 ACTIONS AFFECTING REAL PROPERTY. Oral evidence is competent to show which was intended, where two persons answer the same name ; l or where two names, having sufficient resemblance, appear, and it does not appear that there were two persons corresponding ; but if it appear that there were two such persons, oral evidence is not competent to show that one was intended by the name of the other. 3 To admit a deed purporting to be executed by the attorney of the party to be bound, there must be some evidence of his authority, 3 but it may be presumed from a recital, in the deed, of a power of attorney and from long possession under the deed. 4 Where a deed is executed under a power, and so far as appears from the two instruments was executed agreeably to it, the burden is upon him assailing the deed to show that conditions specified in the power were not performed. 5 7. alterations.'] An unexplained alteration appearing on the face of an instrument does not render the deed incompetent as evi- dence of a transfer of title. It is not error to let the instrument go to the jury. 6 In so far as a deed operates as a present transfer of title, an alteration, though fraudulently made by the grantee subsequent to delivery, cannot operate as a re-conveyance to divest the title once vested ; but, if at all, by way of estoppel, or as having de- stroyed the evidence necessary to manifest the transfer. On the other hand, so far as the deed is executory, as for instance in case of a covenant of warranty relied on to pass, by way of estop- pel, an after acquired title, a material alteration fraudulently made by the grantee, annuls the covenant itself thereafter. 7 Oral evidence is competent alike to prove or to explain an alteration in a deed ; and, notwithstanding the statute of frauds to prove oral assent to an alteration ; 8 and, for these purposes, another than the subscribing witness is competent. 9 1 Jackson v. Goes, 13 Johns. 618. * Jackson v. Hart, 12 Johns. 77. 3 Denn v. Reid, 10 Pet. 624. 4 Doe v. Phelps, 9 Johns. 169 ; Doe v. Campbell, 10 Id. 475 ; and see Forman v. Crutcher, 2 A. K. Marsh (Ky.) 69. Possession is essential. McKinnon v. Bliss, 21 N. Y. 206. 6 Clements v. Machebceuf, 2 U. S. 92 (Otto), 418. and cas. cit. Compare Morrill V. Cone, 22 How. U. S. 75. 6 Little v. Herndon, 10 Wall. 26, 31 (in this case cancellation of one number and interlineation of another in the description of premises in a deed), NELSO.V, J. ; and see page 406 of this vol. After great conflict of opinion, the weight of recent authority is in harmony with sound general principles; and, without denying that an alteration may be so suspicious as to require the exclusion of the instrument if offered without explanation, ordinarily submits the instrument to the jury with whatever explanation may be afforded by the contents and appearance of the instrument itself, and by the extrinsic evidence, if any, ad- duced, leaving it for the jury to say whether the explanation is satisfactory. See Maybee v. Sniffen, 2 E. D. Smith, 1, s. c. 10 N. Y. Leg. Obs. 13; Herrick v. Malin, 22 Wend. 387, 393; Waring v. Smyth, 2 Barb. Ch. 119, 133; Smith v. McGowan, 8 Barb. 404, 407; Jackson v. Osbotn, 2 Wend. 555. 559, 1 Whart. Ev. 629. 7 See opinion of CLIFFORD, J., in Smith v. U. S. 2 Wall. 219, 231, and cas. cit,. and 9 Cent. L. J. 173, note. 8 Speake v. United States, 9 Cranch, 28, 9 Penny v. Corwithe, 18 Johns. 499. EJECTMENT. 697 8. connected instruments.'] Documents referred to in the deed, and material to the title 1 should be produced, or their absence accounted for and secondary evidence given. 3 In case of loss, long possession, or even the terms, 3 or character, may enable the court to presume the contents and effect of the lost instrument. 4 A document made, by reference, part of a deed under which both parties claim, is admissible on proof of identi- ty, without further proof of its execution. 5 A map referred to as recorded may be resorted to, to identify the premises, although the record was illegal. 6 If more than one map answering the reference exists, oral evidence to show what was intended, is competent. 7 A reference to premises as those previously con- veyed to the grantor by another person, does not exclude oral evidence to identify the land, but does riot allow of oral evidence of the parties' intention. 8 9. consideration.'] The consideration clause is not within the rule by which written evidence excludes oral ; 9 but the non- payment of the consideration stated, or its nominal character, is not relevant against the party claiming under the deed, 10 unless in connection with evidence showing equitable grounds for avoid- ing the transfer, for without such proof the grantor or those claiming under him cannot contradict the recital of consideration. 11 Hence the party claiming under a deed acknowledging a con- sideration need not, in the first instance, give any evidence of con- sideration 12 unless he claims to be protected as bonafide purchaser for value ; w and even then the acknowledgment in the deed of the receipt of the purchase money is sufficient prima facie evidence of its payment to bring him within the protection of the record- ing act, 14 though not to enable him to hold under a fraud com- 1 Otherwise of an instrument merely directing the future disposition of the prop, erty. Duke of Cumberland v. Graves, 9 Barb. 6U5. 2 Jackson v. Parkhurst, 4 Wend. 369 ; s. P. in the case of the bond recited in the mortgage. See paragraph 41, on Foreclosure. 3 Jackson v. Lamb, 7 Cow. 431. 4 McBurney v. Cutler, 18 Barb. 203. 8 See Crawford v. Loper, 25 Barb. 449 ; Smith v. If. Y. Cent. R. R. Co. 4 Abb. Ct. App. Dec. 262. Koonanv. Lee, 2 Black, 499, 504. Compare Cal dwell v. Center, 30Cal. 639. As to whether the recorded plat referred to is conclusive against proving the original plat and a mistake in the record, see Jones v. Johnston, 18 How. U. S. 150. 1 Slosson v. Hall, 17 Minn. 95. 8 Jackson v. Parkhurst (above); and see Reed v. McCourt, 41 If. Y. 435. 9 Adams v. Hull, 2 Don. 306. 10 Meaking* v. Cromwell, 2 Samlf. 512; Meriam v. Ilarsen, 2 Barb. Ch. 232, affi'g 4 K.iw. Ch. 70; Childs v. Baruum, 11 Barb. 14, affi'g 1 Sandf. 58; 8. p. Wood v. Chapin. 13 N. Y. 509. 11 Grout v. Townsend, 2 Den. 336, affi'g 2 Hill, 554. 18 Clarke v. Davenport, 1 Bosw. 95. 13 See paragraph 37. 14 Wood v. Chapin, in N. Y. 509; Bolton v. Jacks, 6 Robt. 166, 234. Compare Ring v. Steele. 4 Abb. Ct. App. Dec. 68 ; Wood v. McClughiin, 4 Supm. Ct. (T. fe C.) 420, s. c. 2 Hun, 150. C98 ACTIONS AFFECTING REAL PROPERTY. mitted by his grantor. 1 Extrinsic evidence of consideration 8 is competent in support of a deed ; 3 and for this purpose the actual consideration, whether pecuniary, 4 or of blood, 5 or marriage, 6 may be proved by extrinsic evidence, although the deed express a different consideration, 7 or a nominal consideration, 8 or none. 9 10. oral evidence to vary or explain writings.'] Tn applica- tion of general principles already stated, it is to be observed that a conveyance of real property is not merely the voluntarily chosen expression of the intention of the parties, and therefore, as between them and those claiming under them, presumably the final definition of their intention, 10 but that it is also by statute the only sufficient means of a voluntary transfer ; u and therefore an intent to transfer real property cannot be imported into the deed by oral evidence ; but oral evidence can only be used as a light to enable the court to read what is in the deed. 12 Hence, to enable the court to understand what was intended, but not to contradict what is unambiguously expressed, 13 oral evidence is competent to identify, 14 locate 15 and apply the description. 16 The long continued and uniform acts of the parties, in case of am- biguity (but not otherwise 17 ) may show that a deed was intended I Bolton v. Jacks (above); Lloyd v. Lynch, 28 Penn. St. 419. s See other cases in Chapter LI. * See paragraph 37. 4 Hinde v. Longworth, 11 Wheat. 199 ; Jenkins v. Pve, 12 Pet. 241. 6 Goodell v. Pierce, 2 Hill, 659; and see Loeschigk v. Hatfield, 61 N. T. 660, affi'g 5 Robt. 26, s. c. 4 Abb. Pr. N. S. 210. * Sec Roberts v. Roberts, 22 Wend. 140. 7 Bank of the United States v. Housman, 6 Paige, 626 ; Hinde v. Longworth (above). 8 Jenkins v. Pye (above). Goodell v. Pierce, 2 Hill, 659. 10 For the limits and application of this principle see pp. 608, 294, Ac. and 483, eprima facie or conclusive 8 evidence, the courts do not give it this effect any further than expressly required, and will not extend the presumption to pre- vious 9 or subsequent 10 proceedings. If the statute does not de- clare that the deed shall be prima facie evidence, the burden is on one claiming under the deed to prove compliance with the law ; and the general presumption of official regularity cannot avail to supply the want of such evidence, as to matters which should be of record, even after the lapse of more than thirty years. 11 Steps which the law makes prerequisites of sale, if not recited in the deed, should be proved aliunde in order to sustain the deed, although the law does not require them to be recited. 13 "Where the statute is prohibitory in respect to conditions of power to act, recitals showing a departure from the statute cannot be helped by the presumption of regularity. 13 The presumption is indulged to supply the place of that which is not apparent, not to give a new character to that which is seen to be defective. Payment of the tax may be proved by oral evidence as well J Stead v. Course. 4 Cranch, 403 ; Hilton v. Bender, 69 N. T. 76, 82. 9 Blackw. 533 ; Hilton v. Bender (above). 3 1 Whart. Ev. 639. Or a certified copy. Wing v. Hall, 47 Vt. 182. The pro- duction of what purport to be assessment rolls, without proof of their authenticity or the genuineness of the assessors' signatures, is not sufficient evidence that the taxes therein mentioned were duly imposed. Stevens v. Palmer, 10 Bosw. 60. 4 Ronkendorf v. Taylor's Lessee, 4 Pet. 349. * Russel v. Werntz, 24 Penn. St. 337, 346. 6 The statutory presumption may depend on the statute in force at the time of the trial. Hickox v. Tallman, 38 Barb. 608. 1 Williams v. Kirtland, 13 Wall. 306; Johnson v. Elwood, 53 N. Y. 431; modi- fied on another point, in 56 Id. 614. 8 Whether a statute declaring it conclusive is constitutional, see McCready v. Sexton, 29 Iowa, 355, 8. o. 4 Am. R. 214; Blackw. 80, and cas. cit. 9 Beekman v. Bigham, 5 N. Y. 366; Whitney v. Thomas, 23 N. Y. 281 ; Rath- bone v. Hooney. 58 N. Y. 463. 10 Westbrook v. Willey, 47 N. Y. 457 ; McCready v. Sexton, 29 Iowa, 356, s. o. 4 Am. R. 214. 11 Hilton v. Bender, 69 N. Y. 75,77, rev'g 2 Hun, 1, s. c. 4 Supm. Ct. (T. n v. Winn, 5 Pet. 233. 18 Jackson v. Marsh, 6 Cow. 281 ; People v. Mauran, 5 Den. 389; United States v. Stone, 2 Wall. 525, 535. 14 Sherman v. Buick, 93 U. S. (3 Otto), 209. 45 706 ACTIONS AFFECTING REAL PROPERTY. The due performance of official acts may be presumed in support of its validity. 1 The rules usual for presuming a lost grant do not avail to the same extent, to prove a grant by the government. 3 18. Landlord and tenant -.] In ejectment between landlord and tenant, the lease should be proved, 3 and it is sufficient evi- dence of plaintiff's title. 4 The landlord's execution of the lease, even where he sues to rescind it as void, is competent in evidence as an act of ownership, and is prima facie evidence of title, even though defendants are only connected with it by evidence that they are in possession of the demised premises. 5 It is for them to show that their possession is referable to some other title. 6 Notice to quit is not necessary under a demise for a term to expire at a time certain. 7 Where a tenancy expired by notice to quit, the service of the notice may be proved by the testimony of the person making it, or of any eye witness, 8 or by memorandum or entry made contemporaneously in the ordinary course of duty by the person who made the service, he being since deceased. 9 The authority of an agent giving the notice may be proved as in other cases of agency, except that a subsequent ratification will not enure to bind the tenant by a notice not authorized when given. 10 The contents of the notice may be proved by producing a duplicate original, 11 or if that cannot be done, by oral evidence, without having given defendant notice to produce the original. 12 The fact that the period contemplated by the notice had expired when the action was brought, may be shown presumptively by the admis- sion of the tenant ; and this is conclusive if express and acted on. 18 The refusal of the tenant to admit the tenancy may be proved in lieu of a notice to quit. 14 1 Jackson v. Cole. 4 Cow. 587 ; Cofield v. McClelland, 1C Wall. 331, 335 ; Carpen- ter v. Rannels, 19 Id. 138, 146; but compare U. S. v. Jonas, 19 Wall. 598, 604. * Oaksmitl.'s Lessee v. Johnston, 92 U. S. (2 Otto), 343, 345. 8 Presumptions arising from the lapse of time will aid defects in the proof of the lease. Bogardus v. Trinity Church, 4 Sandf. Ch. 633; Carver v. Jackson. 4 Pet. 1. If the demise was oral, it may be proved by any person present at the making of it, or by circumstances, such as the payment of rent. Tyl. Ej. 65i\ An agreement for a lease is not enough without proof of renj; paid, if the tenant claims to hold adversely. Jackson v. Cooly, 2 Johns. Cas. 223. 4 Stott v. Rutherford, 92 U. S. (2 Otto). 107. See p. 523, Ac. of this voL s Magdalen Hospital v. Knotts, 36 Weekly R. 640. 6 Id. Contra, Caldwell v. Center, 30 CaL 639. 7 Tyl. Ej. 207 ; Gregg v. Von Phul, 1 Wall. 274. See, also, Lamed v. Hudson, 60 N. Y. 102 ; Smith v. Littlefield, 51 N. Y. 539 ; People ex rel. Aldhouse v. Goelet, 14 Abb. Pr. N. S. 130, s.c. 64 Barb. 476. 8 Tyl. Ej. 551. * Doe 4- Patteshall v. Turford, 1 1 Mees. L 5. If possession with or without apparent paper title has been shown to have been in a person under whom either party claims, evidence of his declarations and admissions, against his interest, of facts such as oral evidence is competent to show, and which directly disparage his title or the extent or the effect of his possession, is admissible against those claiming under him, if clearly shown to have been made while he held the possession and the title, if anj. P. 158 of this vol ; Outcalt v. Lud- loW, 32 N. J. L. 239 ; Carpenter v. Carpenter, 8 Buah (Ky.), 2S:i ; Kckford v. DeKiy, 8 Paige 89; Keator v. Dimpiick. 46 Barb. 158; Graham v. Busby. -34 Miss. 272, 274; Jackson v. Livingston, 7 Wend. 136; Corbin v. Jackson. 14 Id. 619. State- ments of merely incidental facts (such as the amount due on a mortgage, l. 1 Jackson v. Shearman, 6 Johns. 19; Jackson v. Cary, 16 Id. 302; Jackson v. Miller, 6 Cow. 751, affi'd in 6 Wend, 228. Evidem e that possession was characterized by declarations claiming it under a writing, does not necessarily require production of the writing. Patterson v. Flana- gan, 37 Ala. 513, 522 ; p. 635 of this vol. n. 2. 2 A recital in a deed given under a decree, may be limited by the decree. McCall T. Carpenter, 18 How. U. S. 297. 3 Carver v. Astor, 4 Pet. 1, and cas. cit. ; Crane v. Morris, 6 Id. 598, 611, STORY, J. ; Torrey v. Bank of Orleans, 9 Paige, 649, and cas. cit. 4 Hill v. Draper, 10 Barb. 454 ; Hardenburgh v. Lakin, 47 N. Y. 109. 8 Sehermerhorn v. Negus, 2 Hill, 335; McKinnon v. Bliss, 21 N. Y. 206, affi'g McKineron v. BHss, 31 Barb. 180. 6 Deery v. Cray, 5 Wall. 795, 805. 7 Jackson v. Harrington, 9 Cow. 86. But, in such a case, since the claim of the party is not founded on the deed, the deed is not an estoppel (Champlain, ); corpora- tion and officer (Cumberland Coal Co. v. Sherman, 80 Barb. 653 ; The Same v. Par- rish, 42 Md. 598) ; and the same rule is applied to some extent in the case of a con- veyance by a child just of age to a parent (compare Turner v. Collins, L. R. 7 Chan. App. 329, s. c. 2 Moats Eng. 290, with Taylor v. Taylor, 8 How. U. S. 183; Jenkins v. 1'ye, 12 Pet. 241); or a conveyance by an aged parent to one of several children (Lansing v. Russell, 3 Barb. Ch. 325 ; Siemon v. Wilson, 3 Edw. Ch. 86); and to those who deal with expectant heirs and reversiouers (Earl of Aylesford v. Morris, L. R. 8 Ch. App. 484, B. c. 6 Moak's Eng. 443; compare Parmalce v. Cameron, 41 N. Y. 392). 8 See Lewin on Trusts, 615, 858. Declarations of the grantee that he took the grant for the grantor's benefit, are admissible, not as proving a trust by parol, but as proving the pretended and the real intent. Platt v. Platt, 68 N. Y. 646, affi'g 2 Supm. Ct. (T. & C.) 25. 9 Denn v. Fuller, 40 Penn. St. 474, 478. For the rule as to proof of undue influ- ence, and of weakness of mind, see pp. 119-22 of this voL CHAPTEE LI. ACTIONS BY JUDGMENT CREDITORS. 1. Judgment. 7. Voluntary settlement. 2. Execution. 8. Intention of the debtor. 8. Indebtedness to plaintiff. 9. of his grantee. 4. Fraud. 10. Admissions and declarations. 6. The consideration. 11. Defense. 6. Indebtedness to other creditors. 12. evidence of consideration. 1. Judgment.] The mode of proving fhe judgment has been already stated. 1 Docketing need not be shown, 2 unless execution or a lien is to be proved, or the judgment was in a justice's or dis- trict court. 2. Execution.] The execution, with the sheriff's return and the date of filing endorsed thereon, is the primary evidence of its issue and return, 3 and, together with testimony of a witness that he had seen it on file in the clerk's office, is sufficient. 4 The resi- dence of the debtor in the county where execution was issued may be inferred from circumstances. 5 Return before the expira- tion of sixty days, though made on plaintiff's request, is prima facie sufficient. 6 3. Indebtedness to plaintiff^ The plaintiff's judgment, un- less recovered by confession, 7 is, both as against the judgment debtor and as against his grantees (even grantees by conveyances prior to the judgment), conclusive evidence of the existence and the amount of the indebtedness established thereby, 8 unless fraud 1 Chapter XXIX. Judgment on attachment without personal service (Thomas v. Merchants' Bank, 9 Paige, 216; compare Clarke, 234, 286), or an interlocutory de- cree not finally determining the question of liability (Public Works v. Columbia Coll. 17 Wall. 621, 530), is not enough. 8 Youngs v. Morrison, 10 Paige, 326. 3 Jones v. Green, 1 Wall. 330 ; Stahl v. Stahl, 2 Lans. 60 ; McElwain v. Willis, 9 Wend. 648, affi'g 3 Paige, 505. Lost execution may be proved by an alias, endorsed and filed pursuant to leave of court, Bradford v. Read, 2 Sandf. Ch. 163. 4 Meyer v. Mohr, 1 Robt. 333, s. c. 19 Abb. Pr. 299. 5 Such as the facts that the other parties resided there, and that the contract was made, for a long time performed, and finally sued on, in that county. Fox v. Moyer, 54N.Y. 125. 6 Forbes v. Waller, 25 N. Y. 430, s. c. as Forbes v. Walter, 25 How. Pr. 166. afS'g Forbes v. Logan, 4 Bosw. 476 ; Renaud v. O'Brien, 35 N. Y. 99, rev'g 25 How. Pr. 67. But, where return is necessary, it must have been made before the commencement of the present action. McCullough v. Colby, 5 Bosw. 477; compare 4 Id. 603. 1 Botts v. Cozine, Hoff. Ch. 79. But see Magniac v. Thompson, 1 Baldw. 344, affi'd in 7 Pet. 348. 8 Candee v. Lord, 2 N. Y. 269 ; Burgess v. Simonaon, 45 N. Y. 225 ; Ludington's Petition, 6 Abb. New Cas. 307, and caaes cited. [736] ACTIONS BY JUDGMENT CREDITORS. 737 or collusion appears. It is not conclusive, except as to matters which appear to hare been litigated and intelligently determined, or established by a default, in a court of competent jurisdiction ; and even then may be impeached for fraud or collusion. 1 If the indebtedness is not established by judgment, its nature and existence must be shown by other evidence. 2 4. Fraud^\ The burden is on the plaintiff to show fraud, 8 clearly. 4 For this purpose circumstantial evidence is freely re- ceived, 5 and is sufficient to sustain a finding. 6 Evidence which is not altogether irrelevant, but can throw light upon the transac- tion, is competent, unless, taken with all otner evidence offered, it could only raise a suspicion insufficient to sustain a verdict. Character is not in issue. 7 A secret trust for the debtor may be proved by any kind of evidence by which fraud may be proved, notwithstanding the statute of frauds, which usually requires written evidence to establish a trust. 8 The retention of the possession of personal property after con- veyance is prima facie evidence of intent to defraud existing creditors of the transferor; 9 and this presumption is sufficient against both parties to the transfer ; but it may be rebutted by evidence of good faith, and any circumstances tending to show good faith are competent to go to the jury. 10 Retention of the possession of real property does not raise a presumption of fraud in a conveyance for value, but may go to the jury with other evidence. If the terms of even a recorded chattel mortgage allow the mort- gagor to sell and substitute other goods, instead of applying pro- 1 Same cases. The competency of a judgment against the debtor's personal rep- resentative is stated in Chapter V. 2 Elwell v. Johnson, 3 Jinn, 558. 3 Loesohigk v. Hatfield, 5 Robt. 26, s. o. as Loeschigk V. Addison, 4 Abb. Pr. N. S. 210, affi'd in 51 N. Y. 660. A mere right of priority, without evidence of fraud, is not enough. Skinner v. Stuart, 15 Abb. Pr. 391, s. c. 39 Barb. 206, 24 How. Pr. 489, rev'g 13 Abb. Pr. 442. Compare Shaw v. Dwight, 27 N. Y. 244. 4 Townsend v. Stearns, 32 N. Y. 209. The weight of opinion is, that it need not be shown beyond reasonable doubt, but the presumption of innocence should be weighed with the testimony. See p. 495 of this vol. and cases cited at pp. 731.733. The only available grounds of relief are those substantially stated in the pleadings. Rome Exchange Bank v. Eames, 4 Abb. Ct. of App. Dec. 83, s. c. 1 Keyes, 688. 8 "In every transaction where fraud is imputed, it must be conceded to be of es- sential importance that the jury should be put in possession of every fact and circum- stance tending to elucidate the question." GOLDTHWAITE, J., Goodgame v. Cole, 12 Ala. 80. The evidence of it is almost always circumstantial. Nevertheless, though circumstantial, it produces conviction in the mind often of more force than direct tes- timony. GRIKR, J., Kempner v. Churchill, 8 Wall. 362. 6 Hildreth v. Sands, 2 Johns. Ch. 35, affi'd in 14 Johns. 493 ; Booth v. Bunce, 83 N.Y. 139. 1 See Johnson v. Camley, 10 N. Y. 570. 8 Bump Fraud. Conv. 542. For recent authorities, see 21 Alb. L. J. 10 ; 5 South. L. Rev. N. S. 617. 10 Proof of good faith is sufficient, without proof of excuse, for not transferring possession. Mitchell v. West, 55 N. Y. 107. 47 738 ACTIONS BY JUDGMENT CREDITORS. ceeds in payment of the mortgage, it is conclusively presumed void, and good faith is irrelevant. 1 In the absence of such pro- visions in the mortgage, extrinsic evidence of intent is com- petent. 2 5. The consideration.'} The recital of payment of a considera- tion, though inadequate or not even valuable, is not conclusive on defendant ; 3 and plaintiff should be prepared with evidence, if he desires either to contradict the recital, or to support it against defendant's contradiction. Inadequacy may be shown by value proven by opinions of witnesses. 4 6. Indebtedness to other creditors.] The grantor's indebted- ness to other creditors may be proved by parol, without producing the written obligations. 5 Judgments against him are competent in evidence for this purpose, without anything to connect the grantee with them.? 7. Voluntary settlement.] A voluntary conveyance is not pre- sumed fraudulent from the mere fact that the grantor was in- debted. 7 Prior creditors make a prirha facie case by showing that, at the timp of the transfer, ne was indebted to such an extent that, having regard to his property, the effect might be to delay, hinder and defraud the creditors. 8 A settlement made when insolvent is fraudulent. 9 This presumption may be ex- plained and rebutted ; for the fraud is always a question of fact with reference to the intention of the grantor. 10 Where there are no prior creditors, a subsequent creditor (es- pecially if impeaching a settlement on the children) must show that it was intended to defraud those who might become creditors. 11 Evidence that it was made just before entering a hazardous enter- 1 Robinson v. Elliott, 22 Wall. 613 ; Peiser v. Peticolas, 8 Reporter, 408. 1 Southard v. Pinckney, 5 Abb. XewCas. 184 ; Peiser v. Peticolas (above). 3 See paragraph 12. " Too commonly a fair debt is used as a little spark of hon- esty to animate a mass of collusion-and falsehood." COWEN, J., Waterbury v. Sturtc- vent, 18 Wend. 853. 4 Pages 636 and 637 of this vol. and notes ; Dailey v. Grimes, 27 Md. 440, 448. 5 Snodgrass v. Branch Bank of Decatur, 25 Ala. 161, 173. 6 Hinde v. Longworth, 11 Wheat. 199. An expert cannot be asked whether the debtor's books showed that he was insolvent (Persse & Brooks Paper Works v. Wil- lett, 1 Robt. 131, 8. c. 19 Abb. Pr. 416), without producing the books or a statement drawn from them by the witness. Other rules as to proving insolvency have been already stated. Page 616. 7 Dygert v. Remerschneider, 32 N. Y. 629, affi'g 39 Barb. 417. 8 Schouler's Dotn. Rel. 278. Embarrassed circumstances at the time cannot be inferred from the mere fact of insolvency at a later period. Sexton v. Wheaton, 8 Wheat. 229. As to conveyance by husband to wife, in fraud of his creditors, sco p. 172, . 13 Ang. _ fraud . 4. Patentee the original and first in- i 9> _ description in printed public* ventor. t i on 8. Specifications : Construction: Ex- 20. prior knowledge or use. tent of claim. 21. public use or sale before appli- 6. Title. cation ; abandonment. 7. Extension: Renewal: Reissue. 22. requisites of the statutory notice 8. State of the art. or answer. 9. Infringement. 23. plaintiff's failure to mark. 10. Witnesses: Models. 11. Admissions and declarations. TT /-, 12. Certified copies. 18. Damages. 24. Plaintiff's rights. 14. Defenses. General issue: Burden 25. Infringmehts. of proof. I. PATENTS. 1. Burden of proof: General evidence of validity.'] The burden is on plaintiff to prove that he, or the patentee under whom he claims, was the original inventor, within the statute j 1 but the production of the patent, 2 if in due form, affords prima facie evidence of its correctness, which, in the absence of oppos- ing proof, is sufficient. 3 A renewal or reissue adds to the pre- sumption of validity. 4 As will be seen below, this presumption is not conclusive in respect to any question depending on the patentable character of the device, or the right of the patentee as inventor. 5 Accepting and acting under a license from the patentee 1 Plaintiff cannot abandon at the trial a part of a combination claimed in the pleading, and rely on the other parts. Vance v. Campbell, 1 Black. 427, 429. * Including the specification and drawings. Cahoon v. Ring, 1 Fish. Pat. Cas. 897, 403, CLIFFORD, J. And whether the patent be original or reissued. Sewell v. Collins, 1 Fish. Pat. Cas. 289, 291. And though not containing any recitals. Gear v. Grosvenor, 6 Id. 814. 8 Philadelphia, l ; Alfonso v. U. S. 2 Story C. Ct. 421; Taylor v. U. S. 8 How. U. S. 197; and pages 806-11 of thisvoL 8 Clifton v. U. S. 4 How. U. S. 242, 247 ; The Luminary, 8 Wheat. 407. Compare Chaff 'C v. U. S. 18 Wall. 645. 9 The Distilled Spirits, 11 Wall. 356, 366. 10 Id. This is the English rule (17 C. B. N. S. 466), adopted in the U. S. Sup. Ct.; and see 33 Vt. 252. 784 ACTIONS FOR CAUSES DEFINED BY STATUTE. 43. Admissions and declarations.'] Where, as in the case of proceedings to enforce forfeiture of a ship, 1 or against a distillery, 8 the forfeiture and the proceedings are in rem, and the knowledge of the owner is not material, the admissions and declarations of the master or lessee, made during his holding that character, are competent. 8 So are memoranda and books containing relevant entries, found upon the premises. 4 44. Cogency of proof ^\ A proceeding in rem for forfeiture, is a civil and not a criminal proceeding within the rule as to proof beyond reasonable doubt. 5 But the jurors ought to be clearly satisfied. 6 VI. ACTIONS ON RECOGNIZANCES. 45. Mode of proof '.] The authority of the magistrate who took the recognizance may be shown by parol evidence of his acts in that capacity, without producing his commission. 7 If the record to be proved is that of the court trying the case, the regu- lar course is to produce and inspect the record. 8 Evidence is not admissible to contradict the record. 9 1 U. S. v. Little Charles, 1 Brock. Marsh. 347. 8 Dobbin's Distillery v. U. S. 96 U. S. (6 Otto), 398, 399. 3 Id. 403. 4 Id. 8 Lilienthal'8 Tobacco v. U. S. 97 U. S. (1 Otto), 237, 267, 271; The Robort Ed. wards, 6 Wheat. 187. 6 Lilienthal's Tobacco v. U. S. (above). * Webster v. Davis, 5 Allen. 393, 396. 8 Longley v. Vose, 27 Me. 179, 184. Id.; People v. Hurlbutt, 44 Barb. 126. CHAPTER LVII. PROCEEDINGS IN ADMIRALTY. 1. Mode of proof. 1. Mode of proof :] The strict rules of the common law in respect to the admission of evidence, are not fully applied. 1 The mode of proof is subject to rules prescribed by the Supreme Court. 3 Ihe competency of witnesses depends on the laws of the State in which the court is held. 3 The proofs must substantially conform to and sustain the pleadings; and although the strict rules of the common law in respect to variance are not followed, yet, in general, the court will not permit a party to be surprised by the exhibition of proof materially variant from the case stated in the pleadings. But, unless the variance is calculated to mislead, the court may proceed to a decree. 4 1 Elwell v. Martin, Ware, 63 ; The J. F. Spencer, 3 Ben. 337. In admiralty, the admissions of the master, though made subsequently to the disaster, are competent against the owner, on the ground that when the transaction occurred, the master rep- resented the owner, and was his agent in navigating the vessel. This sort of evi- dence is confined to the confessions of the master, and cannot be extended to any other person in the employment of the boat, for in no proper sense has the owner in* trusted his authority to any one but the master. The Potomac, 8 Wall. 690. * U. S. U. S. g 862; Blease V. Garlington, 92 U. S. (2 Otto), 1. Regulations as to proof in particular classes of actions, will be found in U. S. Rev. Stat. 3 U. S. R. S. 858. Except that there can be no exclusion for color, and that the incompetency to testify against executors, dec., is specially regulated by the stat> ute quoted at p. 70 of this vol. 4 2 Abb. U. S. Pr. 80; Rules for Court of Admiralty, No. 24, 61. 80 [785] CHAPTER LVIII. DEFENSES IN ABATEMENT. 1. Parties. 2. Another action pending. 1. Parties.~\ The mode of proving the facts necessary to establish the incapacity of a party, or the interest of a person not made a party, has already been discussed in the chapters on ac- tions by and against particular classes of persons. The sworn schedules in bankruptcy or insolvency made by plaintiff, and con- taining no mention of the claim he sues on, are competent, 1 but not conclusive, 2 Against him. The like schedules of the third person, alleged to be the real party in interest, are not competent, 8 without evidence to connect plaintiff with them. Correspond- ence between the plaintiff and the third person is competent, if part of the res gestce* 2. Another action pending. 5 ] The pendency of another ac- tion, to be admissible, must be pleaded, 6 unless it appears on the face of the complaint. 7 Under an allegation of another action pend- ing, a judgment recovered since commencement of the present action is evidence unless offered as a bar. 8 The record, or at least the docket entry, is the primary evidence. 9 Oral evidence of the pendency of the action is secondary. 10 Oral evidence as to the questions involved is admissible, within the limits stated in respect to former adjudications. 11 Proof of the pendency of the former action within reasonable limits of time, raises a presump- tion of its continued pendency, which throws on plaintiff the bur- den of showing the contrary. 12 I Springer v. Drosch, 32 Tnd. 486, s. c. 2 Am. R. 356. 8 See Cram v. Union Bank, 1 Abb. Ct. App. Dec. 461, affi'g 44 Barb. 426. A sworn statement in a pleading is not a conclusive admission. 3 Turner v. See, 67 N. Y. 667. 4 May v. Brownell, 3 Vt. 463. 6 For the facts to be established, see Watson v. Jones, 13 Wall. 679. 8 White v. Talmage, 35 Super. Ct. (J. . 3 At common law as well as in equity. Hartshorn v. Day, 19 How. U. S. 211, 222. 4 Beatty v. Fishel, 100 Mass. 448 ; Vint v. King, 2 Am. Law Keg. 712. For a summary of the material facts, under the new procedure, see Freuzel v. Miller, 37 Ind. 1, s. c. 10 Am. R. 62, and 17 Alb. L. J. 607. 4 Seo pp. 735, 236. 8 Lefler v. Field, 52 N. Y. 621 ; Dubois v. llermance, 56 N. Y/673, affi'g 1 Supreme Ct. (T. & C.) 203. ' Fox v. Griffin, 2 Allen, 1, 7. 7 Dudley v. Scranton. 67 N. Y. 424. 8 Eyro v. Totter, 15 How. U. S. 42; Vint v. King (above). ' llubbard v. Briggs, 31 N. Y. 618. 10 See Gray v. Lessiugton, 2 Bosw. 257. [787] 788 DEFENSES IMPEACHING THE CONTRACT SUED ON. frauded, showing him peculiarly susceptible to be imposed on, is competent. 1 The neglect to produce evidence in the power of the party charged with fraud is especially significant on this issue. 2 Preponderance of evidence is enough. 8 The fact of having restored, or offered to restore, must be alleged, to be admissible. 4 2. Mistake.'] The presumption is that a grantor, who was of competent capacity to do business, knew the contents of a deed signed and delivered by him. 5 His mistake must be clearly and strongly proved before the court can relieve against it. 8 Evidence of mental reservations, or of subsequent oral declarations, is not enough, even where the deed remained in his possession. 7 3. Duress.']- Actual violence need not be proved. 8 The act must be shown to have been induced by the coercion ; this is not necessarily presumed. 9 4. Want of consideration.'] Original want of consideration may be proved, when consideration is in issue. 10 Inadequacy of consideration is not a defense ; u unless so gross as to sustain an inference of fraud. 13 Subsequent failure of consideration, to be admissible, even where it consists in the fact that the contract was made in consideration of an executory agreement, which was afterward broken, 18 must be pleaded. 1 Kauffman T. Swar, 5 Penn. St. (6 Barr.) 230. * Cheney v. Gleason, 117 Mass. 557. 8 Jones v. Greaves, 26 Ohio St. 2, 9. c. 20 Am. R. 752. Compare p. 495 of this vol. 4 Devendorf v. Beardsley, 23 Barb. 656. An offer to allow judgment may be enough. Harris v. Equit. L. Ass. S<>c. 64 N. Y. 196. B Souverbye v. Arden, 1 Johns. Ch. 240. As to who has the burden of proof if the signer is shown to have been illiterate, compare Add. on Contr. 7 ed. 226 ; King T. Languor, 1 Nev. Id. Contra, Rose. N. P. 657. 4 Biggins v. Moore (above) ; Pearson v. Scott, 38 L. T. R. N. S. 747. Doubleclay v. Kress, 50 N. Y. 410, rev'g 60 Barb. 181. Contra, eee 2 GreenL Ev. (13th ed.)52. Id; Smith v. Kidd, 68 N. Y. 130, 187. 7 Doubleday v. Kress (above). 8 Smith v. Kidd, 68 N. Y. 130, 137. 9 Megary v. Funtis, 6 Snndf. 376. 10 Id. 139 ; Rose. N. P. 667. 11 Doubleday v. Kress, 50 N. Y. 410, rev'g 60 Barb. 181. Smith v. Kidd, 68 N. Y. 130. 141. 13 Josephthal v. llcyman, 2 Abb. N. C. 22. 14 Heyman v. Beringer, 1 Abb. N. C. 315. According to some authorities the implied powers of an attorney for a non-resident and absent creditor, are more ex- 51 802 PAYMENT OR OTHER DISCHARGE. 7. Payment to assignor.'] If an assignment of a mortgage remain unrecorded, a payment on account meanwhile to the assignor may be proved ; and the fact that the payment was in advance, or that the debtor did not call for production of the securities, is not evidence of bad faith. 1 In case of a final satis- faction, the omission to call for the securities is a suspicious cir- cumstance which requires evidence that the payment was made under misrepresentation, or other evidence of good faith. 2 8. to executors, trustees, <&c.~\ Evidence of a payment to one of several co-executors or co-administrators, and a release, receipt, satisfaction piece or the like executed by one, are com- petent against the estate. 3 Otherwise of co-trustees. 4 In case of payment to an executor, administrator or other trustee, evidence that it was made actually and in good faith, and that the trustee was authorized to receive it, is sufficient without evidence as to the application of the moneys. 5 In case of pay- ment on a written security, it is not necessary to show that the trustee indorsed the payment on the bond, or paid the money to the cestui que trust. 6 9. to sheriff.'] A debtor who has paid the debt to the sheriff, upon an execution against his creditor, cannot, when the creditor sues him, prove the payment merely by the sheriff's re- ceipt and the execution. He must prove the judgment by the record; the transcript from, the office of the clerk of a county in which the judgment-roll was not filed, is not sufficient. 7 The mere issue and delivery of an execution, is not, prima facie, evi- dence of the payment of the judgment on which it is issued. 8 A levy on land raises no presumption of satisfaction of the judg- ment. A levy on chattels, is presumptive evidence of satisfac- tion only when the execution has been so used as to change the title of the goods, or in some way to deprive the debtor of his property. 9 The seizure by the sheriff, upon attachment, of goods sufficient to pay the judgment is not, alone, presumed to be satis- faction. The burden is on the debtor to show the application of the goods to the judgment. 10 tensive than those implied in other cases. See Glass v. Thompson, 9 B. Monr. (Ky.) 235; Hopkins v. Willard, 14 Vt. 474; Kimball v. Perry, 15 Id. 414; Heyman v. Beringer, 1 Abb. N. C. 315, 316, note. 1 Van Keuren v. Corkins, 66 N. Y. 77. 8 Brown v. Blydenburgh, 7 N. Y. 141, and see Purdy v. Huntington, 42 Id. 334 ; Faster v. Beals, 21 Id. 247 ; Kellogg v. Smith, 26 Id. 18, and page 11 of this voL 8 3 Abb. N. Y. Dig. new ed. 345. 4 As to payments to and receipts by other trustees, see pp. 235, 817 of this vol. 1 N. Y. R. S. 730 (2 Id. 6th ed. 1, 110), 66 ; Champlin v. Haight, 10 Paige, 274. 6 Hadley v. Chapin, 11 Paige, 245. ' Handly v. Greene, 15 Barb. 601. Compare Code Pro. 293. As to payment on attachment at suit of a third person, compare Ross v. Pitts, 39 Ala. N. S. 606, and Flanagan v. Mechanics' Bank. 54 Penn. St. 398. Runyan v. Weir, 8 N. J. L. (3 Hals.) 286. United States v. Dashiel, 3 Wall. 688, and cas. cit. " Maxwell v. Stewart, 22 Wall. 77. PAYMENT. 803 10. Payment ~by mail.'] The burden of proof of payment of a debt, is not sustained by proof that a letter, even though reg- istered, 1 containing the requisite amount, directed to the creditor, was duly deposited in the post office. 2 The debtor must also either show that the creditor authorized this mode of remittance, by express assent or direction, or a usage and course of dealing from which such assent or direction may be fairly inferred in which case due mailing is conclusive 8 or he must give evidence of circumstances tending to show receipt by the creditor, in which case the question may go to the jury. 4 Evidence that in a previous instance money was sent by mail without objection, is not enough to show authority, nor is a mere letter by mail re- questing a remittance. 5 The post master's entries are competent as tending to show the receipt of a registered letter, 6 but are not conclusive, 7 even as to date. 8 11. T)y check or draff] A check or draft drawn by defend- ant, 9 payable to the order of the plaintiff, and shown to have been paid by the bank or drawee to the plaintiff ; or indorsed by him and shown to have been paid, without other evidence that it was paid to him ; is presumptive evidence of payment of the amount by defendant to plaintiff, without evidence that plaintiff re- ceived the paper from defendant. 10 If the paper was payable to bearer, it must be shown that it was delivered to plaintiff, or that he received the money or value on it. 11 Payment of money being thus shown, it is presumed to have been in satis- faction of an existing debt j 12 and in the absence of other proof may be presumed to apply to a debt of the same amount, in suit. 13 Mere delivery of a check, 14 does not operate as payment of a previous debt, and a receipt given on such delivery, acknowledg- 1 First Nat. Bank of Bellefonte v. McManigle, 69 Penn. St. 166. s. c. 8 Am. R. 286. s Gurney v. Howe, 9 Gray, 404, 407; Crane v. Pratt, 12 Gray (Mass.), 348. 3 Gurney v. Howe (above). 4 First Nat. Bank of Bellefonte v. McManigle, 69 Penn. St. 156, e. o. 8 Am. R. 236 ; Waydell v. Velie, 1 Bradf. 277. 6 Burr v. Sickles, 17 Ark. 428; Morton v. Morris, 31 Geo. 878. But see Town- Bend v. Henry, 9 Rich. (S. C.) 818. 6 Gurney v. Howe (above). 7 Punlop v. Munroe, 7 Cranch, 242, 270, affi'g 1 Cranch C. Ct. 636. 8 Gurney v. Howe (above). 9 So of a check made by his wife and indorsed by him. Murphy v. Brick, 33 Penn. St. 236. 10 Mountford v. Harper, 16 M. & W. 825 ; Egg v. Barnett, 3 Esp. 196. Contra, Bunting v. Allen, 18 N. J. L. 299, unsound because payment without more is pre- sumed to be in satisfaction of debt. 11 Lowe v. McClery, 9 Cranch C. Ct. 254 ; p. 245 of this vol. 18 Masser v. Bowen, 29 Penn. St. 128. 13 Murphy v. Brick, 33 Id. 235. 14 Unless drawn upon the creditors themselves. Pratt v. Foote, 9 N. Y. 468 ; Comm'l Bk. of Penna. v. Union Bk. of N. Y. 11 N. Y. 203. 804 PAYMENT OR OTHER DISCHARGE. ing the receipt of money, if given by mere agents for collection, adds nothing to the effect 01 such delivery, and is open to parol evidence as to its real import. 1 If defendant relies upon laches of his creditor in demanding payment or giving notice of dishonor of a check given by the debtor in payment, the burden of proof is on the defendant to show such laches. 8 In the absence of express agreement, a check though drawn by the debtor in lieu of money at the request of the creditor and delivered in exchange for a re- ceipt of payment, does not amount to payment, unless the check is actually paid or clearly would have been paid if duly presented. If remaining unpaid it is not enough for the debtor to show that it might probably have been collected. 3 If the draft or check of the debtor, drawn on a third person, is expressly received in full payment, the burden is on the plaintiff to show diligence in ob- taining payment, and if not paid, notice of non-payment ; or he must excuse the non-presentment and produce the bill on the trial to be cancelled. 4 Other rules as to proving payment of negotiable paper, 5 or b the delivery and acceptance of negotiable paper, 6 have been ready, stated. 12. T)y note, &c., of debtor, or third person.] Defendant, in proving the debt to have been paid by the transfer of securi- ties need not produce the securities, 7 unless he desires to show their contents or tenor. Negotiable paper of the debtor, 8 or of his agent, 9 or of either of several joint-debtors, 10 or the negotiable paper of any other person, 11 or a draft or order of the debtor on a third person, 12 taken for an antecedent debt, 13 is presumed not to have been accepted in pay- ment, but only as conditional payment, suspending the right of action. The burden is on defendant to show that it was given and re- 1 Bradford v. Fox, 38 N. Y. 289, reVg 16 Abb. Pr. 61, s. c. 39 Barb. 203; B. P. Taylor v. Wilson, 11 Mete. (Mass.) 44. 8 Id. 3 Syracuse, olaiid v. Crosby, 49 N. Y. 183. The burden seems to be put by the statute on the debtors, to show that the release was intended to discharge all. 3, last clause. 6 Howe v. Thompson, 15 Abb. Pr. 377 ; Strong v. Dean, 55 Barb. 337 ; Hewlett v. Hewlett, 56 Barb. 467. 1 For instance, to show that a release of " all demands " was not intended to re- lease a particular debt. Pierson v. Hooker, 3 Johns. 68. 8 Fryik v. Green, 5 Barb. 455. See pp. 738, 741 of this vol. 10 Van Bokkelen v. Taylor, 62 N. Y. 105, rev'g 2 Hun, 138, 8. c. 4 Supm. Ct. (T. i C.) 422; Acker v. Phoenix, 4 Paige, 305 ; and see p. 507 of this vol. II As distinguished from a composition deed. Russell v. Rogers, 15 Wend. 351. 18 Gray v. Barton, 55 N. Y. 68 ; Terry v. Black, 58 Id. 185. 13 Crossley v. The St. Louis, 4 Ben. 510 ; Schmidt v. Herforth, 5 Robt. 124. 14 Stearnes v. Tappin, 5 Duer, 294. As to new promise compare p. 821 of this voi, and Stearns v. Tappin (above). DISCHARGE. 819 to or holders of it, if they dealt with it with actual notice of the fact of suretyship. 1 Actual notice to the creditor, of the fact of suretyship, at or before the time of the act complained of, must be shown ; hut for this purpose it is enough if the fact ap- pear on the face of the security. 2 34. Modification.'] An extension or modification of the con- tract may be proved by evidence which would be competent in favor of the principal. VIII. DlSCHABGE. 35. In bankruptcy.'] A discharge, even though granted pend- ing the action, 8 is not admissible in evidence unless pleaded. 4 In case of a discharge under the Bankrupt Act of 1867, or the United States Revised Statutes, a general allegation that on a day named it was duly granted to the bankrupt (setting forth a copy) is enough to admit the evidence. 5 Defendant has the burden of proving his discharge. 6 The certificate is admissible without the record of proceedings; 7 and is conclusive evidence of the fact and regularity of the discharge. 8 Plaintiff has the burden of proving that his demand is one of a class excepted by the statute from the operation of the dis- charge, for example, that it is for money received in a fiduciary capacity. 9 In case of & foreign bankruptcy, the burden is on defendant to show affirmatively that the contract or the parties to it were 1 Hubbard v. Gnrney, 64 N. T. 457; and cas. cit. in 11 MoaFs Eng. R. 41, n. 183; 17 Id. 183; Artcher v. Douglass, 6 Den. 509; Garrett v. Ferguson, 9 Mo. 125; B: P. 1 Greenl. Ev. 281, n. 2, and cas. cit. ; H>,rne v. Bod well, 5 Gray, 457. * Gahn v. Nieracewicz, 11 Wend. 812, affi'g 3 Paige, 614. * Rudge v. Rundle, 1 Supm. Ct, (T. & C.) 649 ; Lump on Bkcy. (7 ed.) 748. 4 Horner v. 8pe!man, 7S 111. 206 ; Bump on Bkcy. 743. 8 U. S. R. S. 5119 ; Hays v. Ford, 55 Ind. 52 ; N. Y. Code Civ. Pro. 532. 6 Cooper v. Cooper, 9 N/J. Eq. (1 Stockt.) 566, 569. 7 Morse v. Cloyes, 11 Barb. 100, 104, rev'd on other grounds in Seld. Notes, No. 5, p. 12 ; Bump on Bkcy. 752. 8 U. 8. R. 8. 5120; Dusenbury v. Hoyt, 14 Abb. Pr. N. S. 132, a. c. 36 N. Y. Super. Ct. (J. f frauds does not require it, if the original contract was in writing. Brandt on Suretyship & G. 85, 65. 824 LIMITATIONS. does not .alter the requisite acknowledgment or new promise, but only requires it to be in writing, signed ; l and the date of the writing may be shown by oral evidence, 2 even for the purpose of correcting an erroneous date. 3 And oral evidence is competent to connect the new promise with the original debt. 4 4. Conditional new promised] If the new promise was con- ditional, plaintiff must at least give evidence from which the jury may infer fulfillment of the condition, as expressed. 5 If the promise was to pay in specific articles, plaintiff must show that he was ready and offered to accept them. Promise to pay when able, is insufficient without evidence of the ability to pay. 6 Direct evidence of ability is not necessary ; it may be inferred from circumstances. 7 To show continuing inability, defendant may prove his indebtedness to third persons without producing or accounting for written securities. 8 5. Acknowledgment.] Evidence of an acknowledgment is not enough unless it suffices to sustain an inference of promise ; 9 but an acknowledgment without words importing intent to pay may suffice. 10 The production of the instrument sued on, with an indorsement in the handwriting of the debtor, of his name and the date of the indorsement, is a sufficient acknowledgment in a writing signed by the party chargeable, within the meaning of the statute. 6. Part payment^] The statute requiring a new promise to be in writing does not prescribe any new rule of evidence as to the fact or effect of payment ; and part payment may be proved by oral admissions of the debtor. 12 Where a part payment relied on was made by an agent, the evidence must sustain an inference that the agent had authority to make a new promise, or to per- form for the party the very act which is relied on as evidence of a new promise. 13 The authority of the agent may be proved by parolX If defendant or his authorized agent made the payment, it is immaterial whose money was used. 15 1 Kincaid v. Archibald, 73 N. Y. 189, 192, affi'g 10 Hun, 9. * Edmonds v. Downs, 2 C. ickson T. Wilkinson, 3 How. (U. S.) 57. FORMER ADJUDICATION. 831 on facts appearing on the record, 1 and to adjudications on adverse rights as between co-defendants. 3 A nonsuit at law, 8 or what, is equivalent, a dismissal of com- plaint in an action of a legal nature under the new procedure, for reasons which would be cause of nonsuit at common law, 4 is not a bar, unless it affirmatively appears that it was granted upon a de- termination of the merits of the same controversy. 6 A demurrer, followed by judgment on the merits against the demurrant, is a bar ; 8 but the bar rests rather on the judgment than on the de- murrer. A report of a referee or similar finding in a court hav- ing power to arrest judgment and grant a new trial, 7 or a verdict, without judgment thereon, 8 or on which the judgment has been reversed, 9 is not an adjudication and is not admissible in a subse- quent action. An order, made on motion, is not conclusive in the same sense as a judgment ; and to prove it the motion papers and evidence should be produced. 10 A reversal, remanding the cause for new trial, is not a bar unless it directly affirms or denies some point in issue. u 12. Record to be produced.] The record, or a copy properly authenticated, 13 must be produced, 13 or accounted for, so as to let in secondary evidence. If the record be lost, the regularity of the proceedings and the sufficiency of the evidence given on the for- mer trial are presumed. 14 Unless a foundation is laid for second- 1 Big. on Eat. 18, 20. s Corcoran v. Chesapeake, 7. [835] 836 COUNTERCLAIMS. same rules as to allegation l and proof 3 of damages apply. The facts alleged, if they constitute a counterclaim as distinguished from a defense, 3 and are properly alleged, are admitted by a fail- ure to reply, 4 if the benefit of this admission is clainjed at the trial. 5 But it is only the facts alleged, not the conclusions of law, that are admitted. 6 Replying to a counterclaim is not a waiver of the objection that the claim is not the proper subject of coun- tered m under the statute. 7 1 Parsons v. Sutton, 66 N. Y. 92, 97, affi'g 39 Super. Ct. (J. insufficient to rebut discharge, 8-J1. ACKNOWLEDGMENT AND PliOOP of deed, 693. of other instruments, 6, 505. by married woman, 174, 175. ACQUIESCENT K, in acts of officers or agents, infrnvd. li, 299. as ratification by corporation, 43. of persons in business to show partnership, 237. 838 GENERAL INDEX. ACQUIESCENCE- Continued. presumption as to wife's, 164 n. of cesttii utit truat, in trustee's dealings, 230. office held by, 193. in account, by drawing balance in pass-book, 278. in terms of sale by possession of goods, 288. In quality, 343. iu infringement of trade mark, 754. of copyright, 705. of patent, 765. ACQUITTAL, not conclusive of innocence, 790 n. (And see 653, 654.) ACT, allegation of doing, admits evidence of causing, 771. or of agency. (See AGENT.) ACT OF CONGRESS, as to "full faith and credit," 541, etc. as to competency of witnesses, 70, 785. as to defense in patent suit, <'ti-. as to certified copies in, 760. ACT OP LEGISLATURE, how proved, 21, 770. "ACT OF GOD," exonerating carrier, 577. ACTION PENDING, as a defense, 717, 786. ACTION QUI TAM, 770. etc. ACTUAL NOTICE, as distinguished from knowl- edge and from notice from stranger, 430, 716, 717. ACTUAL MALICE, 666. ADDRESS of package delivered to carrier, 565. of notice mailed, 433. error in. explained, 431. ADEMPTION, 148. ADJUDICATION. (See JUDGMENT and FORMER ADJUDICATION.) ADJUSTMENT, "hit or miss," mistake in, 269, 814 w.10. in insurance, 491. ADMEASUREMENT of dower, 708. ADMINISTRATION, decree granting, when may be proved. 56. extrinsic evidence to aid in executing will, 146. ADMINISTRATION BONDS, action on, 514. ADMISSIONS, distinguished from accounts stat- ed, 458. implied from objection to other item, 460. of an assignment, by silence, 2. bankrupt's schedule as, of debt, 10. what sufficient, of de facto corporation, 23, 24. of incorporation, 28. to rebut presumption of authority to affix seal, 35. of authority of public officer by making con- tract, 195. of title, by dealing with public officer, 197 n. return of officer, an, 200. of existence of process, of judgment or decree, when incompetent, 202. of partnership, 204. denials and explanations of, 220. of partnership by contract or conveyance in firm name, 208 n. in pleading, to show trust, 233 n. that one is surety, competency of, 255. to show payment by chi;ck, 259. of sale of goods as proof of receipt of proceeds, 276. as proof of ordinary sale by delivery, 287. of indebtedness, as evidence of amount of price, 306. of value, cost of article as, 307. by buyer to prove delivery, 314. contrary to fact provable, under allegation con- trary to the fact, 423. by principal of proper payment to agent, prim- ary, 800. to show payment, 808. to show part payment, 824. of guilt, 773. of counter-claim by failure to reply, 835. ADMISSIONS AND DECLARATIONS, how far whole conversation to bo admitted, 266, 461, 492, 748. as narratives of past events, 265 n. (And see RES GEST^E). of assignor of personal property, competency of, for and against assignee, 11, etc., 286, 740. of patent, 700. ADMISSIONS AND DECLAR \TIONS- Confd, during progress of invention, 757. of former pOBMWor of chattels, etc., 488, 690. of predecessor, in title or occupancy of real property, 710, 740. of occupant or tenant, as against owner, 641. of principal, against guarantor, 474. or surety, 513. of real party in interest, 444. of currier's agent, 567. of stranger in same casualty, 581. in case of assault, P48. or nuisance, 642 h. of officers or agents insufficient to show au- thority, 43. of officers and agents authorized to speak, 44, 4!2. when part of res gestce, 44. of president of bank as to its business, 44 n. of officers and agents of insurance co., 4y. of party to life insurance, 502. of employees, adduced against master, 361. of child against parent, 379. of deputies as against sheriff, 612. of inaemniior, 612. of incorporators before incorporation, 45. of previous, against consolidated corporation, 4S. of members, adduced for or against corporation. 43. in report of committee, when incompetent, against corporation, 38. of officers and agents, to prove notice, 45. of executors and administrators, against estate, 58. of decedent's insolvency, 161. incompetent, against whom, 159. of decedent, for or against executors and admi. - istrators, 59, 60. of deceased to witness, 68. of representative or heir, raising presumption of payment to ancestor, 69. of heir, no prejudice to executor or adminis- trator. 159. of one of several joint legatees or devisees, to show fraud or undue influence, 159, 160. by grantor, rebutted by evidence relating to transactions with deceased, 70 n, certificate of marriage as declaration, 80, 99. as evidence of marriage, 82, etc. of last person seized, to sustain escheat, 86. statement of birth in baptismal registry, 87. of parent, etc., as to legitimacy, 89, 90. as hearsay as to facts of pedigree, 90, etc. primariness of oral declarations as to facts of family history, 96. as to domicile, 107. of third persons as to possession of lands, un- der ancient will, 128. of testator as to contents of lost will, 127. no part of testamentary acts, 129. admissibility in aid of interpretation, 129, etc. as to alterations in will, 134. to rebut extrinsic evidence as to genuineness of will, 136. to identify person named in will, 137, etc. to explain latent ambiguity, 140. or misdescriptions, 148 A. to ideniify property, 144. as to boundaries, 145 n. of decedent and beiu-ttciary, to show intent as to advancement, 151, etc. of ancestor, as to title, 157. of husband or wife, 165, etc. as to agency of one for the other, 167. as to her title, 169. as to services and payment of wife, 176, 177. as to causes of separation, 179, 085, 679. as to charge on separate estate, 184. of husband competent, against widow in dow. er, 708. of joint parties or joint defendants, 187, etc. of subordinate, when admissible against supt/ rior, 199. of conspirators, 190, 621. to show partnership, 207, 209. of partners, 205, 218. GENERAL INDEX. 839 ADMISSIONS AND DECLARATIONS ConCd. as to authority or scope of business, 214. after dissolution, ~1S. of dec<-;i.-ed ami surviving partner, 225. of cestul que tnut, 'Mti. of trustees, 238. in relation to pale, 320. of one buving us ayent, that he was principal debtor! .T;I. of agent, t > show transaction for benefit of principal, 299. of seller or his agent, to show warranty, 348. as to use and occupation, liiO. as to hire of chattels, 35ii. of intention to compensate services, 359. or liability for, 360. as to amount of purchase money, 383. as to negotiable paper, 417. of genuineness of signature, 392. Affecting title, 405. as to time of indorsement, 413. of drawee adduced against drawer, 421. as evidence of notice of protest, 430, etc. to prove demand and notice, 434. as to incumbrance, MO. as to meaning of instrument, 526. in case of negligence, 587. as evidence to whom credit was given, 619. as evidence of title to crops, 024. respecting trespass, 630. of validity of process, 032. in actions for assault, 649. in ejectment, 710. as to title to lands, 710. competency and effect of, in creditors' actions, 710. in divorce, 743, 747. in patent cases, 760. in penal actions, 773. in cases of forfeiture, 784. in admiralty cases, 785. of infant, to enow original transaction, 796. of party, to show usury, 795. ADULTERY, how proved, 743-748. husband or wife as witnesses, 165, 747. ADVANCEMENTS, 150-156. ADVERSE ENJOYMENT, of easement, 640. ADVERSE POSSESSION, of negotiable paper sued on, 389, 444. as a defense in ejectment, 715. under judicial sale, 701. avoiding deed, 710. ADVERSE PROCESS, against bailee or bailor,554. ADVERSE TITLE, in actions on lease, 530. ADVERTISEMENT, action for compensation for, 876. forbidding trust, to rebut marriage, 84 n. to sustain escheat, 86. designation in, to show usage as to name, 143. by partners as proof of partnership, 208. or of dissolution, 233. description of goods in, as a warranty, 341, 345. offering reward, 383. of loss of negotiable paper, 450. libelous, 663. foreclosure by, 701. of utility of invention, 756. ADVICE, as evidence of good faith, 602, 655, 741. AFFECTION of husband and wife in crim. con., 685. of parties to marriage promise, 677. AFFIDAVIT of denial of receipt of notice of protest, 427. AFFIRMATIVE RELIEF demanded in answer, 886. AGE, direct testimony to, 87. hearsay as to relative age, 91. declarations as to. 92 n. assumption of suffrage or submission to taxa- tion, 96. entry in Bible, 96 n. decree of probate, indicating, 110. presumptive limit of, 73. raises no presumption of survivorship, 79. nor of marriage, 79. nor of imposition on testator, 119n. AGE Continued. presumption that possiOility of Issue is extinct, 86, 724 n. aids evidence of identity, 102. not a testamentary disqualification, 115. infant's age, 7:15. age of document, 128 n, 397, 709. AGENCY, inferred, from joint business, or courso of business, 189, 1!H). not presumed from paying debt, 252. proof of, in action for money received, 279. not proved by reputation, Sou. how proved against wife, 358. ratification as proof of, 566. presumed to continue, 482. of partners, ended by dissolution, 219. to request advance of money, 250. to sign or indorse, 399, 403. to fill blanks in note, etc., 408. to accept bill or refuse, 421. to demand payment, 424. indorsement for purposes of, 414. as to accommodation paper, 442. as to insurance, 476, etc. as to account stated, 460. to arbitrate, 465. to sign sealed contract, 509. charter party, 517. to sell passage ticket, 579. in malicious"prosectition, 653. of delinquent in case of negligence, 591. to sustain notice to one of two joint obligors. 100. foundation for admitting declarations of parties having joint interest or liability. 188. or confederates or conspirators, 191. or trustee, 236. defendant only an agent, 2S2, 208, 334, 360, 386. denial of agency to buy goods, 333. necessity of disclosure, 860. notice of defective authority, 451. fraud by agent, 615. (And see AGEXT.> AGENT, act of, proved under general allegation, 287. authority proved under general allegation, 32. fraud of, under general allegation. 3S. ratification under allegation of authority, 32. appointment of corporate, 40. delegation by corporation, 32. authority of corporate, 40. clerk found behind desk, 41 n. dress indicating brakeman, 41 n. authority, when presumed. 34. , proved by ratification, 37. by parol, 37. by his own testimony, 43. bv corporate minutes, 48. to buy, when presumed to have power to re- scind, 335. authority of, to receive payment, 800. presumed from agency in sale, 800. authority of carrier's receiving agent, 564. authority of, by corporate note or resolution, 41. implied scope of authority, 41. authority, to dissei/e, 43 rt. to negotiate a loan, 43. to warrant, 841. to use sample. 344. to receive payment, 447i. sealed authority, 506. death of principal ends authority, 801. presumption as to husband's acts for wife, 174, 182, 184. as to wife's act for husband, 177. to purchase nect'.-sario. K*, 179. fraud committed by husband, 185. presumptions as to conduct of corporate, 33. corporation liable for wrong by, 38. wilful and malicious act of, 38. request by, for loan. 241. a 'i ion by, for money paid. 252. for advances and charges, 252 n. for money received. -'; t. limit of recovery for money paid, 264. parol to show principal in contract, 298. Sroof of purchase by. 298. able as undisclosed principal, 300. 840 GENERAL INDEX. AGENT Continued. liable for price of gooda, 801. discretion of, as to " more or less," 805. broker, when agent of both, 329. understanding nf mutual agent, 330. presumptions as to payment by negotiable pa- per 7. by-bidding, 334. AUCTIONEER, suing in his own name, 327. declarations to vary terms of sale, 323. parol to show buyer, 334. AUTHENTICATION of record, 537, %tc., 542. of deed, 693. of certified copy of patent, etc., 760. of books of corporation, 49. of document after action brought, 427, 505. AUTHOR, action for compensation, 377. AUTHORITY, shown under general allegations, 32. shown by testimony of officer or agent, 43. not by their declarations, 43. by general reputation, 40. by ratification, 37. under general allegation, 32. allegation of express parol, 43. implied in title of office, 42. implied scope of, 41. of executors and administrators to sue, 64. of husband or wife as agent for the other, 167. of husband to apply wife's funds, 174. of wife to buy, etc., for husband, 177. of husband to contract as agent of wife, 182. of husband showing coercion of wife, 185. of one engaged in joint business, 190. of one joint owner to borrow money for all, 242. of members of corporation, 40. of corporate officer or agent, 40, 48. to make parol contract, 34. to execute deed, proved by parol, 36. to seal deed, 35, 36. to assign, 35. to draw bills, 41 n. to make sale out of course of business, 35. burden of disproving, 40. of servants of corporation, 41. by vote or resolution without seal, 41. of partner, 205, 209, 214, 216, 218. knowledge of partner's want of, 222. of partner after dissolution. 21!). of officer, production of how compelled, 61. of officer deiure, 41. of public officer, to contract, 194, 195. to cue, 197. of officer or agent, 7. to request loan, 241. to make request or promise, for money paid, 250. of broker to sell. : to warrant, 341, ail. to use sample. :'. 1 1. to receive- price, SOI. to purchase goods, 333. to hiirn or indorse. 3!i!>. to recover oil lease, 525. to pay, 800. to make part payment, 824. to muke payment by mail, 603. to receive mooer,S78. to make tender, 817. to disseize so as U> acquire adverse possession, 42 n. scope of, in sale of goods, 298. notice of limits of, 41 n. liability of assumed ai;ent, 801. to violate law, 772. (Aiul set AUKNCT and AOBXT.) 842 GENERAL INDEX. AUTHORSHIP, not proved by opinion, 377. AU'AKI), action on, 405, etc. admissible under allegation of account stated, 4.MI. admissible to prove damages, 511. as a former adjudication, ,s:*i. BAD CHAItACTKK. (See CHARACTER.) BAIL, sheriff's failure to take, 608. (See also BONDS.) BAILMENT, actions on contract of, etc., 653. purol to show, an advancement, 154. to explain Instrument Importing, 289, 553. BAILEES, action* against, 552, etc. for money received, 274 n.. oral to vary writing, 154, 289, 553. estoppel of, 554. eviction, 554. BALLOTS, T49. BANK, corporate existence of national bank, 22. organization of national, 232. false description in will, 145 n. action by for overdraft, 279. custom to collect disclosing agency, 282 n. action by Depositor for money received, 277. action against on check, 454. admission by crediting payment in pas8-book,13. balancing and returning pass-book, 278, 459. competency of admissions of president, 44 n. appointment of receiver of national, 231. (And see following words.) BANK BOOK, as an account stated, 245, 278, 459. primarinetfs of, in action for money lent, 245. incompetence, to show money lent, 244 n. when not competent against stockholder, 48. BANK CHECKS, actions on, 453. BANKERS, actions against as collecting agents. 558. when deposit with, recoverable as a loan, 243. check drawn on, evidence of payment not of loan, 244. conversion by, 558. BANK NOTES, payment by, 277, 805. as evidence in action for money received, 277. BANK OFFICER, memoranda of, 429. BANKRUPTCY, admissibility of copies of pa- pers in, 9. proof of assignee's title, 9. primariness of assignee's assignment, 9. schedule as admission of debt, 10. as showing true owner of claim, 786. inadmissibility against assignee in, of declara- tions before appointment, 11 n. dissolves partnership, without notice, 222. of corporations, etc., 768. discharge in, 819. BAPTISM, registry of, as proof of birth, 86, 98. identity of person mentioned, 101. BAR, evidence of keeping, 774. BARRATRY, 500. BEER, intoxicating, 778. BEER PUMP, as evidence of liquor business, 774. BATTERY, actions for assault and, 646, etc. BELIEF of donor, in construction of trust, 234. proved by testimony of party, 620. as to works of " necessity or charity," 791, of witness, when competent, 395, 745. BIAS of assignor, how shown, 10. of declarant, as to facts of family history, 95 n. BIBLE, " family record " in, SO n., 93, 96 n. BIGAMY, presumption of deaeh after seven years' absence, 75. exceptions from statute of, 83. cogency of evidence, 495. BILL pP LADING, how proved, 564, 565, etc. as evidence of title to goods, 318, 487. in married woman, 180. as evidence of delivery, 564. mere admission or declaration of consignor,288 n. mailing of, on delivery through carrier, 815. terms as to delivery, 576. explanation of, 566, 567. eflectof warning consignee, etc., 572. usage of seller's duty in taking and forwarding, 316. BILL OP SALE, distinction between, and bill of parcels, as best evidence, 6. BILL OF SALE Continued. ruiminu; to married woman individually, 170. as evidence of ownership, 488, 623. parol to idi-ntify thiiii,', 303. to vary consideration, 280. BILL RENDERED, as aa account stated, 459. not a limit, 368. BILLS, NOTES AND CHECKS, authority to make for corporation, 35, 41 n. of husband to sign for wife, 182 n. power of trading company to make, 42. deemed signed at tinie of delivery. 219 n. child's note for an advancement, 154. husband's notes for goods bought by wife, 176. note given by wife rebuts her agency for hus- band, 178. to married woman, prima fade of her title, 180. intent to charge separate estate, 183. * sealed note of firm for debt, 216. receipt by holder to indorser, showing payment as against maker, 261 n. admissions and declarations of maker and in- dorser. 186 n. of president of bank, 44 n. presumption that drawees know signature of others, 270. presumption that depositor had funds in bank, 279. discharge of Indorsersby neglect, 246. action between parties for money paid, 257. for proceeds of negotiable paper wrongfully received, 274 n. loan presumed from usurious discount at incep- tion, 795. when evidence of money lent, 239, 243 n., 244. entries in check book, in action for money lent, 245 n., 241. draft as a demand of payment, 331. promise to pay draft as proof of delivery of goods, 315. joint note as proof of partnership, 221. change in printed checks, notice of change of partners, 224 n. payment by check or draft, 803. check presumptive payment of debt, not a loan, 245.. evidence of "money paid," 259, 260, 263, 268. payment by note, etc., of debtor or third person, 331, 804. usage to give notes, on question of payment for goods, 313. creditor giving note to debtor to show payment, 809. payment by bank on forged checks, 278. tender by check, 816. delivery or tender of new notes in composition with creditors, 816. warranty of negotiable paper, 340. BIKTH of children not presumed, but slight proof sufficient, 85. registry of, and baptism, 86, 97. entries of, in family record, 93. proved by hearsay, 91. physician's testimony, or account, 87. testimony of parents to date of, 89. not a " transaction " between mother and child, 68 n. date of, in registry, 98. hearsay as to place of, 91 n. to be proved by one claiming title by collateral descent, 85. before marriage, renders child illegitimate, 88 n. as proof of citizenship and alienage, 103. 1 of issue, constructive revocation of will by, 125. BLANK FORM, competent secondary evidence, 428, 478. BLANKS, in nezotiable paper, 408, 419, 441 n. in date of sealed instrument, 508. for name of grantee in deed, 695 n. in case of married woman's deed, 175 n. in will, effect of, 133 n. not filled by extrinsic evidence, 129. BOARD AND LODGING, action for compensa- tion, 379. BOARD OF HEALTH, determination of, 642. BOARD OF SUPERVISORS, ordinance of, 770, GENERAL INDEX. 843 "BO ATS, "what arc, 485. BODILY FEELINGS, etc., 502, 598. BONA FIDE assignee, 8. holder of negotiable paper, 389, 430, 445-448, etc. purchaser of land, 697. burden and mode of proof, 715. BONUS, action on, 504, etc., 513. muuicipHl or coupon, 451. primary aud secondary evidence in foreclosure, 71!). alterations, 721. (And see ALTERATION.) of executor and administrator, 57, 514. of assignee for benefit of creditors, 10. corporate acceptance of, 37. authority of officer to contract to sell, 35. parol assignment, 2. receiver's, as proof of appointment, 231. when giving, is evidence of "money paid," 258 n. competency of public officers not having given, 197. admissions and declarations of parties liable on a, 18(5 n. (And see BOTTOMKY.) BOOKS of foreign law, 22. of history, science or art, 699. entries of births, deaths and marriages in, 93. libel in, 063. ancient, 49. BOOKS AND PAPERS, refusal to produce, 783. production of tending to criminate, 753. how to be used on question of mental capacity of testator, 119. of corporation, 46, etc. of foreign corporations, copies of, 50. foundation for secondary evidence of contents, 51. notice to corporation to produce, 51. entries in against defendant in action by receiv- er, 232. of bank as evidence against it for "money re- ceived," 278. as evidence in action for over-draft, 279. of firm as evidence in favor of firm, 205. against partners, 218. between partners, 229. to prove partnership. 226. found on premise! illegally used, 784. (And see below.) BOOKS OF ACCOUNT, of party admissible in his favor, 245, 823, etc., 336, 373. party competent to identify, 69 n. to show to whom credit given, 302. when using part, admits rest, 326. (And see BOOKS AND PAPERS.) BOTTOMRY BOND, 615. BOUGHT AND SOLD NOTES, delivered by broker, 329. description in as warranty, 341. parol to vary, 343, 345. BOUNDARIES, in deed, 699, etc. "by," "upon" or "along," highway or stream, 726 . declarations of predecessor as to, when incom- petent, 145.,700, 711 n. BREACH of contract of employment, 584. of performance of contract, 610. of condition of bond, 514. of covenant to repair, 532. of duty by bailee, 555. of promise of marriage, 676, etc. "BRICK BUILDINGS,'* what are, 485. BROKER, nales through, 328, 329. parol to show buyer to be, 334. authority of, to warrant 341. participation in profits by, 212 n. action for compensation ", 379. actiom !itr:iiii!-t, 558. BROTHER AM) SISTER, sen-ices between, 359. BURDEN OF PROOF, remains throughout on plaintiff, 404. BURIAL, m:istry as proof of death. 72, 97. 98. BUSINESS, place of, when proof of user, 28. ownership of. 777. knowledge of usages by one engaged In. 296. memoranda made in usual course of, 322. BUSINESS Continued. wife's separate, 175, 180, etc. inferring agency from joint, 189. scope of partnership, 209, 214, 217, etc. of limited partnership, 221. presumption of private dealing by partner, 222. continuance of, after expiration of articles, 227. agreement to devote attention to, 228. carried on in name of another, 298. BUSINESS CARD, 774. BUSINESS MEN, competent as to hand-writing, 398. "BUNDLE OP RODS," explained by parol, 485. BY-LAWS, of corporation, 38. when to be pleaded, 40. not judicially noticed, 40. proof of, 40. by statutory record, 39 n., 46, 770. adoption proved by parol or inferred, 39. when competent against agent or servant, 48 n, notice of limits of authority, 41 n. CANCELLATION of will. 123, 125. revival of former by, 125. of entry in account to release advancement, 154. marks of, on negotiable paper, 408. of security as showing payment. 805. of lease, 533. action for cancellation of instrument, 732. CANVASSERS' RETURNS of election, 749. CARD of business, 774. CARGO, parol to explain meaning of, in contract, 305, 485. CARLISLE TABLES, 724 note. CARRIERS, actions agaiust common, 564, etc. delivery through, 315. delivery to, to satisfy statute of frauds, 318. bailee's estoppel, 554. CASHIER, oral evidence that he acted for bank, 402. (And see %)>.) authority to certify, 455. presumptions as to authority, 401. competent as to handwriting, 398. CASKS, evidence of liquor traffic. 774. CASUALTIES, resistor of. 501. 5s:;. CAUSE AND EFFECT, connection of, 591. in case of nuisance, 612. of intoxication, 777. CERTIFICATE of officer, when competent for himself, 197. not conclusive in quo warranto, 749, 750. by architect, etc., of performance, 371. of deposit, evidence to explain, 402 n. of demand, protest, etc., 424, etc. by consuls, 500. of acknowledgment or proof, 505, 693. of sale by sheriff, 702. relating to judgment, 535. etc. under act of Congress, 542. of election, 749. of registration of trade mark, 751. of copyright. Vliti. of discharge in bankruptcy, conclusive of regu- larity, 819. of discharge in insolvency, 820. CERTIFIED COPIES of bankruptcy proceed- ings, 9. of statute of sister state, 22. of sealed instrument of corporation, 35. primariness of. of resolution authorizing execu- tion of corporate deed. 36. of by-laws or ordinances, 40. 0? Corporate record, 50. of vote of corporation, when competent, 60 n. of letters of administration, primariness of, 58. of copies of registries authorized by law, 97. of marriage in foreign state. H of record of public nut tire, when competent, 99. of judgment of divorce, 101. of record of naturalization, admisstbility of, 103. of appointment of public ollicerto dispense with authenticity of original, 1!)4. of oath of public officer, when competent. 194. of judgment. 535. of ship's register, 4!V>. of chattel mortgage, 025. GENERAL INDEX. CERTIFIED COPIES Continued. of mechanic's lien, 7(57. of patents, etc., 757, 758, 760. of record of former adjudication, 831. CHARTERS or corporations, 21-30. judicial notice of, 21. of corporation of sister state, 23. of foreign corporation, how proved, 23. acceptance of, how pToved, 24. how disproved, 25. effect, 24. of new powers granted after, 31. proof of acceptance of, by municipal copora- tion, 25 n. user, without formal acceptance, 27. oral admission proof of acceptance, 28. minutes to prove acceptance, 48. CHARACTER of party, as affecting credit of ac- count kept by him, 325. not in issue on the question of money lost at play, 283 n. In action for price of croods, 336. pa question of marriage, 84. in (hvorce, 746. In actions by judgment creditors, 737. in penal action, 773. on charge of criminal conduct, 496. in trespass, 630. in action for assault, 651. for defamation, 673. in breach of promise, 679. in action for seduction, 683. in crim. con., 687. of a deceased subscribing witness to a will, 112. of animals, 645. national character, 102. CHARGE OF CRIME requisite cogency of evi- dence, 494. CHARITY, extrinsic evidence in case of gifts to, 141. CHARTER PARTY actions on, 518. CHARTS and m-ips, 690. CHATTEL MORTGAGE as evidence of title, 625. when presumed void, 737. CHATTELS, actions for possession, 688, etc. continued possession as badge of fraud, 737. for injuries to (see NEGLIGENCE aiid TRESPASS). CHECKS, actions on, 453. check for bagl. CITY ORDINANCES. 770. CIVIL DAMAGE LAW, 775, etc. CLERGYMAN, solemnization of marriage proved by eye witness, 60. CLERGYMAN- Continued. registry of marriage kept by, 80, 98. privileged communications to, 501. CLERK behind desk presumed to bo agent, 41 n- 480,800. acting as officer, powers of, 43. declarations of bank clerk as to accounts, 279. testimony as to account being overdrawn, 244 n. memoranda of, 429. production of, who made entries, 245. entry or indorsement by notary's clerk, 426. presumption as to delivery of letters, 433. attestation by, ofjudgment of sister state, 543. CLOUD ON TITLE, action to remove, 718. does not sustain ejectment, 691. COAST GUARD, registry of, 499. COERCION of wife by husband, 185. COGENCY OP EVIDENCE of negligence, 884. of demand, etc.. of negotiable paper, 423. of waiver of demand, 435. of diversion of negotiable paper, 442. of charge of crime, 495, 671. of corruption or partiality of arbitrator, 470. of mistake, 513. of deceit or fraud, 479, 615. of assault, 649. of adultery, 745. in penal action, 773. in proceedings for forfeiture, 784. COHABITATION, as evidence of marriage, 79, 83, 164. 743. alone insufficient to prove marriage, 81. following contract per verba futuro, insuffi- cient, 80. not necessary, if there is solemnization, 80. prolongation strengthens presumption of mar- riage, 79. begun as meretricious, no proof of marriage, 82. termination of, to rebut marriage, 84. illicit as evidence on legitimacy, 88. as evidence in question of undue influence, 122. presumption as to property kept in husband's house during, 172. and repute, as indirect evidence of marriage, 81, 473. when presumption of marriage not overcome by denial, 85 n. degree of proof of, to be increased when one of parties still living, 81 n. as evidence of sexual connexion, 743. and holding put, as proof of marriage, 178. and declarations, as proof of marriage, 82. "C. O. D.," 565. COLLATERAL AGREEMENT, proved by parol, 335, 524. COLLATERAL FACT, notice of, 772. recital as evidence of, 712. former adjudication as evidence of, 826, 828. COLLATERAL PROMISE to pay debt to third person, 386. COLLATERAL SECURITY, assignment of, pre- sumed from that of principal delegation, &. agreement to apply before demanding payment, 412. negotiable paper, as, 444. when acceptance of payment, 808. payment of, 806. burden of proof as to payment, 9, 445. COLLUSION in confession of adultery, 747. COLLECTING BANKERS, actions against, 558. COLLECTOR, duress in payment to, 271. ' COLOR OF TITLE under judicial sale, 701. COINCIDENCES, evidence of copying, 766. COMMISSIONS, receiving or charging, evidence of agency, 279, 834. broker's action for, 379. COMMERCIAL PAPER, actions on, 387, 486. (And fee BILLS, NOTES and CHECKS.) COMMON CARRIERS, actions against, 5U3, etc. delivery through, 315. to satisfy statute of frauds, 318. bailee's estoppel, 554. COMMON EMPLOYMENT, actions for negli- gence, 592. COMMUNICATION with deceased, exclusion of, 62. 64. G(i. 6U. GENERAL INDEX. 845 COMMUNICATION- Continued. privileged, In libel and slander, 670. to professional witness. (See WITNESS.) COMMON COUNCIL, ordinance of, how proved, 770. COMPARISON OF HANDS, general rule, 396. in case of will, 113. ancient document, 709. COMPANIES, actions against telegraph, C04. liability of stockholders, etc., in joint stock, 768. (See also CORPORATIONS.) COMPLAINTS of suffering, 599. COMPOUN 1) 1 NTEREST, 459. COMPROMISE, mode of proof and effect, 815. receipt "as a compromise," 807. by trustees, 235. admission pending negotiation, 461. COMPOSITION with creditors, 815. CONCEALMENT of thing, evidence against con- cealer, 371. of evidence, 783. in action for specific performance, 729. of contents of instrument from illiterate party, 512. of value of thing converted, 627. in case of insurance, 478, 493. in account stated, 815. of value from carrier, 575. CONDONATION, how proved. 748. CONDITION of goods packed, 506. of person or tiling injured, 594. of contract, ehown by parol, 294, 404. of delivery of contract, 404, 477-8, 607. of delivery of lease, 524. of release. 818. in sale of goods, when performance or waiver of, necessary. 313. of new promise, fulfillment of, 824. precedent, to written instrument, shown by parol to establish, 294. must be alleged, 361. performance of, before passing of title, 317. CONDITIONAL DELIVERY of contracts, how proved, 404, 477-8, 507, 524. CONDONATION in crim. con., 683. in divorce. CONDUCT of testator as part of res gesla, 112. as evidence of mental condition, 115, 122. of testamentary intent, 141. to show modification of contract of sale. 314. on receipt of goods as part of rex yesta 1 , 319. CONFESSIONS during cohabitation as proof of marriage, 82. of adultery, when competent as to illegitimacy, 89. as to cause of separation, 179. competency of, in divorce, 747. CONFEDERATES, acts, declaration, etc., of, 14, 190,621. 71ii. CONFESSION OF JUDGMENT, presumption as to legality, 5l(i. as a former adjudication, P30. CONFIDENTIAL COMMUNICATIONS, disclos- ure of, 165. between husband and wife, 165. third person may testify to, 166. (And see WITNESS.) CONFLICTING CLAIMS, determination of, 717. CONNIVANCE at seduction, 683. in crim. con., 686. in sales of Honor, 782. CONSENT, <>f husband, what insufficient to wife's conveyance, 174. of C(#tui que trust to trustee's dealings with es- tate, 236. parol to show recission of contract as to re- ceipt, 2M. of principal to agent retaining for his own use, HI of insurance company. 481. CONSIDERATION, distinguished from motive, 441 //. enforcing illegal contract and assert ini.' title to money ariMiig from it. distinguished, 282. for assignment, when to be proved, 4, 34U. for negotiable paper, 389, 404. . CONSIDERATION Contlnved. with irregular indorsement. 437. for indorsement, 413. for irregular indorsement, 439. for check, presumed, 464. for guaranty, 472. for account stated, 463. for non-negotiable paper, 457. to sustain subsequent promise to reimburse, 251, for deed, 697. of contract in action against married women, 181 n. in actions by judgment creditors, 738. in action for specific performance, 730. to establish resulting trust, 238. parol, to show, in deed, 741. in release, 818. that consideration of deed to husband came from wife, 171. statement of contents, of evidence of debt, or of conveyance, to prove, 306. how far explainable in deed, 741. parol to vary written, 294 n., 295, 280. variance in, when immaterial in action for non- delivery, 338. seal as evidence of, 50S, 817. completion by buyer of, before passing of title, 817. when warranty to be sustained by new, 341. inadequacy of, 405. inadequacy, irrelevant, 473. to show fraud, 787. amount on discount when material, 449, 793. non-payment of, irrelevant, 473. want or failure of, in negotiable paper, 441, 448. in sealed instrument, 512. to impeach contract, 788. denial of, when does not admit defense of want of partner's authority, 222. action to recover money paid on failure of, 268, 272. amount of, not evidence of bias of assignor, 10. " love and affection," or " good-will," presump- tive of advancement, 152. of conveyance to child, paid by parent, presump- tive of an advancement, 153. as evidence of value of an advancement, 156. for estate conveyed to wife, paid by husband, 170. charging separate estate of married women by application of, 184. for partnership contracts, 205, 214. with or from lirm, when a variance, in action by survivor, 225. as ratification of act of partner, 216, 217. application of, in question of to whom credit was given, 216. as evidence against agent, of money received, 275. illegal, as defense in action for money received, 282. competency of lack of means, to disprove pay- ment, 170, 810, 813. "CONSIGNED," implies agency, 488. CONSIGNEES, delivery to, by notice from com- mon carrier, 576. (And .< liit.i. OF LADING.) CONSPIRACY, admissions and declarations of confederates. 1 1. ism, C.21, 740, etc. acts and declarations of, 190. preliminary question as to connection of parties, 191. ' public officer presumed innocent of, 199. proof of fraud of one only. .~>.'>:i. CONSTABLES, actions by and a^inst, 605. etc, justifying levy, 631. (.4m/ nee OlTlOUB.) CONST AT, to prove state grants, 705. CONSTRUCTION of writings by oral evidence. (AfcORAL. EVIDBNCK.) CONSTRUCTIVE SERVICE of process, 547. CONSUL, certificates of, 500. " CONTENTS UNKNOWN." in bill of lading, 498. CONTINUANCE OF FACT. (&x PBBSUMP- CONT T INTJmG GUARANTY, 473, 474. CONTRACT, what is within rules of evidence, 362,523. 846 GENERAL INDEX. CONTRACT- Continued. circular may be, 364. passage tickets are not, 581. account stated iis,458. in duplicate or in counterpart, 5?3. printed and written forms, 407. memorandum on the margin, 409. oral insurance, 476. of lease, how proved, B23. of bailment, actions on, 553. actions on sealed, 504, etc. allegation of, implies lawful contract, 401. written, when admissible under general allega- tion, 361, 471, 522. oral, admissible under allegation of written, when admissible nnder allegation of specialty, 522. will not sustain allegation of fraud, 614. breach of does not sustain allegation of negli- gence, 583. for compensation of corporate officers, when must be in writing, 381. void by statute, evidence of quantum meruit, 352, 367. technically defective, admissible to show yuan- turn meruit, 355. for services, under statute of frauds, 363. between strangers, admissible, 354. carrier's receipt presumed to have been read, 574. consideration provable without actual produc- tion, 405. Statement of consideration in past tense not conclusive, 473. description of, character of, contracting parties explained, 402. oral evidence to vary. (See ORAL EVIDENCE.) as to manner of contemplated performances, 376. written submission not varied by parole, 466. practical construction of, 509, 526. words intended in different senses, 509. referred te in a deed, 697. subsequent modification, 413. between vendor and purchaser, merged by deed, 728.. (See also titles of various classes of CON- TRACTS.) CONTRACTOR, who is, 361. in cases of negligence, 592. CONTRIBUTION, among joint obligors, 254. to tax, by joint owners of land, 254 n. agreement to make, 359. parol agreement by indorsers, 257. by co-sureties, 256. implied promise of, 255. proof of suretyship for purposes of, 255. demand of pnyment. 265. CONTRIBUTORY NEGLIGENCE, 6C2. of passenger, 581. burden of proof in actions for negligence, 594. under Civil Damage Act, 779, 782. admissible under denial. 561. CONVERSATION, to show intent or mistake on sale of land, 729. as part of res gestce to show receipt of money, 209. -or application, 265. with bearer of letter, when competent, 266. how far whole statement in, to be admitted, 266. actions for crim. con., 684, etc. CONVERSION, actions for, 622, etc. by bailee, 552, etc. by broker, 558. by attorney. 557. by carrier, 572. in replevin, 689. sheriff's action for, 605. allegation of, in action for money received, 273. by agent, when it does not defeat his action for money paid, 252 n. CONVEYANCE, when presumed, 709. by trustee, 237. evidence of wife's, 174. CONVEYANCE- Continued. parol to show relation of principal and agent in, 280. to vary consideration, 280, 385, 738, 74.. to show resulting trust by, 238. to show it was /or benefit of firm, 228. by trustee of express trust, 235. voluntary, of insolvent debtor, 738. fraudulent intent of grantee, to impeach, 739. by a, when presumptive of an advancement,152. declarations of donor, as part of res fffstce, 154. by husband and wife jointly, presumption from as to title, 169. in firm name, as proof of partnership. 208 n. consideration named in, as evidence against agent, of money received, 275. to disprove joint interest or liability, 188 n. (See also DEED.) CONVICTION, on plea of guilty, 746. competent in action for reward, 383. of assault, 649. COPY of papers in bankruptcy, admissibility of, 9. of statute of sister state, 22. of foreign corporation, 23. of record of corporate proceedings, primariness of, 48. signature of officer to corporate minutes, not official, 49. of corporate records, competency of, 50. of public record, authenticated by officer, 50 n of vote of corporation, 50 n. of books of foreign corporations, 50. of family record, when admissible, 96. of registries authorized by law, 97. of marriage in foreign state, 97 n. of record of a church, admissibility of, 98. photographic, of a signature, when not admis- sible to aid expert, 113, 398. of foreign probate of will, 128. of entries in bank-bonk or pass-book, 245. of entry, when used as memorandum refreshing memory, 320. of account kept by party when admissible in his favor, 325. of notice of protest, 427. sworn, of judgment, 536. of book or other publication, 664. in patent cases, 761. of mechanic's lien, 767. COPYRIGHT, action for infringement, 766. relevancy of in trade-mark case, 751. CORPORATIONS, actions by and against, 17. pleading as to corporate existence, 18. necessity of proof of corporate existence, 18. proof of, though not pleaded, 18. general principle as to proof of incorporation, 30. de facto corporate existence sufficient, 18. when de facto, 19. modes of proving, 23. strict proof, when required, 18, 19. what proof necessary to take by will, 19. extrinsic evidence in case of corporate designa- tion in will, 138. presumption as to inexact designation of, 140. three elements of strict proof, 19. proof when incorporation is incidentally in is- sue, 20. legislative sanction necessary, 20. shown by charter or statute, 20. legislative recognition of existence, 20. judicial notice of special charters of munici- pal, 21. proof of charter of domestic, 21. of sister state, 22. of foreign, 23. acceptance of charter, how proved, 24. how disproved, 25. necessity of acceptance of municipal charter, 25 n. organization of, under general law. 25. competency of minutes to show, 48. duplicate certificates of incorporation. 25. incorporation under general (statute of a sister state, 26. GENERAL INDEX. 847 CORPORATIONS Continued. official permission to do corporate business, 28. disregard of statute conditions, 26. color of organization and user, when sufficient, 27. compliance with charter conditions presumed, 27. effect of proof of user, 27. mode of proving user, 27. certificate of comptroller of currency as to or- gani/.aiioii of national bank, 232. admission of incorporation, 28. estoppel against, 28. against those dealing with, 29. estoppel against members and subscribers of, 29. estoppel liberally applied for and against, 30. date of incorporation, 30, 31. misnomer of, goes only in abatement, 31. -in will, 138, 140. fraud, forfeiture or non-user, as to corporate ex- istence of, 31. quo warranto as to, 750. corporate powers in general, 31. acceptance of new powers, 81. original and delegated powers, 32. acts of officers or agents of, in course of busi- ness, 32. authority proved under general allegations, 32. ratification proved under allegation of authori- ty, 32. delegation of power to officer or agent, 32. allegation that contract was made by president and directors, 32 n. impeachment of power of officer, resting on consideration, 32. validity of acts of, sustained by equitable estop- pel, 33. power of, to acquire a patent, when inferred, 33 n. validity of loan by, when presumed, 33 n. acts presupposing other acts, 33. acta not presumed illegal, 33. general presumptions as to corporate acts, 33. of validity of acquiring, etc., real estate, 33 n. impeachment of acts of, presupposing other acts, 34. presumed authority of officer or agent, 34. contracts by, 34. implied promises by, 34 presumed authorization or ratification by di- rectors, 34. simple contracts in writing, when valid, 34. unsealed contract, not varied by parol, 34. primariness of, 34. negotiable paper made by, 401. authority of person executing it, 35. assignment by, 6. authority of person executing assignment, 7, 85. oral evidence that officers signed for company, 402. of officer to make sale out of course of busi- ness, :>."). authority to president of, to execute power of attorney, 5. seal of, how proved, 35. . sealed instruments of, when admissible without further proof. 35. corporate acceptance of bond or deed, 37. contract of, ambiguous as to party, 37. effect of imprint of corporate title on paper, 37. torts by, 37. false representations by meeting, 37. acceptance of false communication of officer or servant, 38. vote "accepting" report of committee, 38. fraud of directors or managing agent under gen- eral allegation, 38. liability for wropgs by officers or agents, 38. assault by servant, 646. regulation* justifying assault, 650. Hireling and by-laws, 38. entrv in books of, to show regularity of meet- ing., 38. necessity of due notice of meetings, 38 n when presumed, 39 . CORPORATIONS Continued. proof of act of corporate board or committee, 39. acts when proved by parol, 39. in absence of books, clear proof of, necessary, S9n. by-laws of private, not judicially noticed, 40. proof of by-laws, 40. authority of officers, agents and members, 40. parol proof of who are stockholders. 40 n., 768. authority of agent by unsealed vote, 41. notice to one dealing, of limits of authority in by-laws, 41 n. implied scope of authority of officer or agent, 41. implied power of trading company to make bills and notes, 42. authority implied in title of office, 42. authority of agent to disseize, 42 n. testimony of officers or agents 10 show author- ity, 43. allegation of express parol authority, how dis- proved, 43. ratification by, how proved, 43. evidence of authority of officer from usage, 402. charter and by-laws, competent as to agency, 491. evidence of cashier's authority, 455. authority of insurance agents, 480. authority of servant of carrier, 580. regulations of carrier, 581 . admissions and declarations of members of, when incompetent, 43. admissions and declarations of officers author- ized to speak, 44, 492. when part of res (/esta, 44. of incorporators before incorporation, 45. of previous, when competent against consoli- dated corporation, 45. notice to, how proved, 45. books and papers of, 46, 768. primariness of statutory record of, 46. competency of corporate record, for or against, 40. against whom corporate acts competent, 48. primariness of minutes or records of, 48. authentication of corporate books when pro- duced, 49. rough minutes, when competent and primary, 50. competency of copies, 50. official reports to, when competent against, 51. copy of entries in books of foreign, 21"> ". notice to produce books and papers of, 51. foundation for secondary evidence of, 51. parol evidence to vary corporate minutes. 51. minutes of agents of, when conclusive on, 51. competency of accounts and business entries of, 52. obligation to compensate officers and promo- ters, 380. transactions of defendant in action by receiver of, 232. liability of stockholders, etc., 768. liability of trustees. 769. CORRESPONDENCE, presumption as to deliv- ery, 434. contracts made by, 292. parol to chow terms of contract made by, 292. of married woman with her business agent, as showing her title. 170. between principal and factor, 559. in breach of marriage, promise, tit". of husband and wife as evidence in crim. con., 685. of testator to show mental condition, 115. designation of society in, to Miow usage. 143. ion of as presumptive of death. ?l.7ii. COSTS, judgment paid us proof of, in actiou for money paid, -.'"-' notice of t-uitto make judgment conclusive aa to, 205. action to recover, 378. COURSE OP BUSINESS, acts of officers 01 agents in, 32. to perform act done in, 42. 84S GENERAL INDEX. COURSE OF BUSINESS Continued. presumption of validity of dealings of corpora- tion, 32. authority of officer making sale out of, 35. of officers and agents to show authority, 41. power of corporate officers, 42, 43, 44. writings in, w foundation for opinion of wit- iii-ss as to signatures, 113. charging separate estate of married woman by contracts in, 184. inference of agency from, 190. deceit or fraud by one partner competent against others, 217. entries by deceased partner in, 225 n. to rebut presumption against, partner from en- tries in partnership books, 230. charges in, to show payments, not loans, 246. In accepting bills to explain factor's possession of them, 259 n. as to daily returns and payments by agent with- out passing vouchers, 282. as to copying and mailing letters, 289. declarations in, to show foreign market value, 309. price current issued in, as proof of value, 309. knowledge of witness to value based ou letters, etc., received in, 310. to show intent as to passing of title to goods sold, 318. memoranda made by a third person in the usual, 322. admissibility of party's books kept in, 323. commissions in, as usury, 794. payment to agent in, 800. COURT of sister state, actions on judgments of, 541. of record, what is, 541. of general and special jurisdiction, 545, etc. COUPON BONDS, actions on, 451. COUNSEL, action for services, 377. privileged communications to, 501. advice of, 655. COUNTERCLAIMS, pleading and proof of, 835. COUNTERPARTS, proof of contract in, 523. of negotiable paper, 421. COVENANT, binding though not signed, 385. implied in sale of realty, 727. in lease, 526. actions on, 504, etc. covenants for title, 519- to repair, 532. parol to explain, 726. alterations in, 696. COVERTURE, alleging, in action by married woman, 180. in action against her, 181. decree of probate, how far conclusive as to tes- tator's, 110. evidence of. (See MARRIAGE.) CREDIT, in account, to release advancement, 154. in contract of public officer, 195. to married woman for necessaries, to charge sep- arate estate, 185. what necessary, to show ratification by married woman, 185. in account with a third person, for money re- ceived, 277. circumstantial evidence to determine to which of several it was given, 240, 265, 302, 360, 374, 438. in actions against partners. 215. on purchase of goods by agent, 333. when presumed given to principal and not the agent, 300. to agent of undisclosed principal, 300. given exclusively to agent to render him liable, 301. to factor for foreign disclosed principal, 302. usage of giving notes, competent to show, 313. deceit in obtaining, 246, 273. decree of enjoyed, how proved, 617. CREDITOR, assent of, to assignment for his bene- fit, 10. when not assignee, within rule excluding inter- ested witness, 65 n. CREDITOR Continued books as proof of organization of corporation in favor of, 47. competency of resolution of corporation in fa- vor of, 48. extrinsic evidence as to bequest to, 147. avoiding purchase by parent in name of child, 153. presumptions as to transfers of property to wife in fraud of, 164 n. silence of wife, when not estoppel in favor of husband's. 167. proceeds of wife's estate hers against husband's creditors, 168. wife's means, in question of consideration against, 170. when deed to wife raises a resulting trust for husband's, 171. burden of proof to show fraudulent possession of wife, 171. ignorance of separate estate of married woman, 183 n. participation in profits by, 212 n. knowledge by, of stipulation that one partici- pating in profits should not be liable to, 211 n. notice of dissolution of partnership to, 224. proof, in accounting between partners, of plain- tiff's being, 226. application of payment by, 811. composition with, 816. CREDITORS' ACTIONS, 736, etc. against executors and administrators, 54. against member of joint stock company, 769. CRIES, 599 n. CRIME, cogency of evidence to prove charge of, 494. CRIMINAL CONVERSATION, actions for, 684, CROSS-EXAMINATION, testing knowledge of witness, 390. as to personal knowledge of death. 72. as to general repute of marriage, 81. notwithstanding privilege, 620. when waiver of motion to strike out testimony, 66. CROP, parol, to explain meaning of, in contract, 305. replevin for, 624. CRUELTY, as ground for divorce, 746. CURABLENESS of injury, 6oO. CURTESY, title by, 708. ancestor's seizin in fact necessary to establish, 157. CUSTOM, or usage, to explain lease, 525. DAMAGES, admissions and declarations of de- faulted joint defendant in tort, on measure of, 187. judgment, when evidence of amount of, 257, 282. object of contract as affecting, 338. in action for officers' breach of duty, 198. recoupment in action on sale, 335. for injury to wife when, belong to husband, 181. in counter-claim, 835. (See also the various AC- DANGEROUS CHARACTER of animals, 645. DATE of assignment, how proved, 2. of receipt by assignor, not presumptive of time it was given, 14. of statute, when not appearing in certificate, 21. of incorporation, materiality and proof of, 30, 31. entries in corporate records, when presumptive- ly made on their, 49. presumptions of date of death, 73, 77. from loss of vessel never heard from, 77 n. of death or burial l>y registries, 97, 98. of death engraved on ring, 93. of birth, shown by registry of baptism, 86. by registry of birth, 97, 98. by physician's testimony or account, 87. by testimony of parents. 89. of marriage shown by registry, 80, 97, 98. declaration when incompetent as hearsay as to facts of pedigree, 91. GENERAL INDEX. 849 DATE Continued. of burial shown by registries, 98. of ancient will, competency of, as to its age, 128 n. affixed to alteration in will, prior to that of will, 184. extrinsic evidence to correct in will, 135. evidence in respect to, in order to charge part- ner, 212. of payment shown by letters of agent and en- tries in account!*, 2fi5. by indorsements, 825. of order for goods, when presumptive of time it was written, 291. of negotiable paper, how proved, 409. of indorsement of negotiable paper, 445. presumption as to date of indorsement, 413, 416. of irregular indorsement, 439. of items in account stated, 459. of award, 467. of guaranty not conclusive, 472. of sealed instrument, 508. of deed, 694. of passage ticket, 578. of lease, 527. of delivery of lease, how proved, 527. of judgment, 538. of process, to show commencement of action within statute period, 822. of writings more than thirty years old, when presumed correct, 95. of written instrument, parol to show erroneous, 295. memoranda refreshing memory as to, 321. account kept by party, as evidence of, 326. as showing place for directing protest, 431. DAY, fraction* of, 538 note. DAY'S WORK, what is, and how proved, 365. " DAYS," meaning of, 519. DEAF AND DUMB PERSON, testamentary ca- pacity of, 115. DEATH, a jurisdictional fact for issuing letters, 57. prima facie evidence of, when sufficient, 64. direct testimony to, 72. proved by registry of, or of burial, 72, 97. date of, in unauthorized registry not incompe- tent, 98. presumptions-of, and of time of, 73. from voyage and special peril, 74. from seven years' absence, 75. what inquiry necessary, 75. rebutting presumption of, from absence, 76. time of, presumed, 77. survivorship in common casualty, 78. of husb-tnd or wife, presumption of, 83. without issue, when to be proved, 85. what deaths to be proved by one claiming- title by collateral descent, 85. under age, not presumptive of no issue, 85. slight proof of, w ithout issue, 86 n. proved by hearsay, 91. except as to place of, 91 n. entries of, in family record. 93. proof by general reputation, 94. repute among acquaintance, newspaper notice, etc., 95, 96. competency of letters of administration to prove, 100. notice unnecessary, of dissolution of partner- ship caused by, 222. of partner, proof of, in action by survivor, 224. against survivor, 225. of person having made memoranda, in usual course of business, 322. terminal ing authority of agent to receive pay- ment, (-'OK fa case of life insurance, 501. action for causing. 601. by intoxication, 780. iJKBT. .issiL'iniii'iit, of, not presumed from that of collateral. :i. revival by admissions and declarations of one of several co-representatives, 59. oy payment by same, 59 n. bequest of, to creditor, 147. 54 DEBT Continued. of child to parent, as an advancement, 151. declarations of donor to show advancement a. Uift. of ancestor, action to charge heir, next of kin, etc., 161. admissions, of wife as to ante-nuptial, 177. liability of married woman's separate estate, 183. assumption of, by incoming partner, 213. by promise of third person, 385. 386. collection of by partner after dissolution, 218. barred by statute, and afterward acknowledged, 823. by partner after dissolution, 219 n. implied promise to pay, 272. statement of contents of evidence of, to prove consideration of contract of sale, 30ti. payment of, by note, etc., of debtor or third person, 804. payment shown by circumstantial and corrob- orative evidence, 810. by surrender of evidence of, 260. extinguishment from lapse of time, 812. accord and satisfaction of, 814. account stated, 815. compromise and composition of, 815. new promise or acknowledgment of, 824. DECANTERS, evidence of liquor traffic, 774. DECEIT or fraud, actions for, 614, etc. for false warranty, 339. by one partner competent against others, 217. by testator as to his will, 131. in procuring execution of contract, 787. in obtaining credit, allegation of, in action for money received, 273. as defense in action on sale, 336. judgment in action for, as bar to action on war- ranty, a=>o. DECLARATIONS distinguished from transac- tions, 13. entry of individual in diary a mere, 47 n. of assignor of non-negotiable security, 8. for and against assignee, 11,12. temporary assignee incompetent, 11 n. of assignor, offer to give, now made, 13. admissibility determined by judge, 13. of assignor and assignee in case of conspiracy, 14. of officer as to meaning of vote, 52. as to pedigree, 92. of custodian of a will, 113. of testator before and after execution of will to show capacity, 115. of testators, to show susceptibility to fraud and undue influence, 122. to show revocation of will, 124. as to lost or destroyed will, 127. when incompetent in absence of ambiguity, 146. to show intent, 146 n. explaining ambiguity as to which of two par- cels, 146. admissible to rebut resumption of satisfaction of debt by bequest, 148. as to cumulative gifts, when incompetent, 148. as to ademption of legacy, 149. time of, bearing on intention, 150. of intent to constitute au advancement, 153 n. of ancestor, heir, etc., 156. of successors, representatives and beneficiaries, use. election to accept beneficial devise in absence of, 157. of third persons to show possession of land under a will, 159. to prove marriage, 164. of husband on delivery of wife's property, 170. on giving money to wife, or receiving securi- ties for her, 172. to establish trust in favor of wife. 174. to show receipt of payment by wife for use of separate estate, 184 n. of wife that purchase or credit was for herself, 178. of married woman on executing written con* tract, 188 n. 850 GENERAL INDEX. DECLARATIONS Continued. preliminary question &a to connection of par- tics to admit, 191. of one joint debtor against others, 187. of partners to prove partnership, 204, 206, 226. to show to whom credit was given, 215. of secret or dormant partner, 211. to show one a partner, 21. clerk, not partner, 220 n. denying partnership, when not disproof of liability, 209. that they " bought it in partnership," insuffi- cient proof of partnership, 210 n. of intent to make request iu action for money lent, 241. to prove a trust, 233, 234 n. of agent to prove agency, 276. to show agency and scope of authority, 299. to request loan, 241. to show embezzlement, 281 of officer or clerk of a bank as to accounts, 279. to show payment under duress, 271. against interest, deceased, payee's receipt as, 260. to prove tender, 816. of inability as to receiving, paying or delivery, to dispense with tender, 316. of ownership by one in possession, in question of title, 286. to show foreign market valne, 309. of auctioneer, not to vary terms of sale, 328. of party to explain warranty, 345 n. of feelings, 502. of suffering, 599. of emotions, 677. characterizing purpose, 636. characterizing possession, 710. of husband and wife iu crim. cou., 685. of surveyors, 699. of ancient persons, 700. as to title of vendor, 727. in actions for assault, 649. of workman, infringing patent, 759. as to contract in action for specific performance, 730. of assignor of patents, 760. of grantor to show mistake in deed, 788. of parties to show intent to make illegal con- tract, i'90. of creditor as to part payment, 808. to show application of payment by debtor, 811. of trust to show statute of limitations had not attached, 822. of conspirators or confederates, 190. of officer or agent, when government not bound by, 195. as part of res gestce, 326. as to past act, 45. of testator at execution of will, 112. as to check being for a payment or loan, 245 n. as to suretyship, 255. as to fund from which payment was made, 264. as to payment by depositor or payer of money, 275. of depositor at time of deposit, 278. as to whom credit was given, 303. as to intent in passing of title, 318. as to title of married woman, 185. as to receipt of goods, 319. entries of dayment, 799. DECREE, foreign, against executor or adminis- trator, effect on ancillary representative, bO. against a married woman, effect of, 168. to prove appointment of receiver, 231. proof of satisfaction of, 260 n. and deed pursuant to it, 701. DEED, when presumed, 709. how proved, 693. title of grantor, 705. presumption of grantor's knowledge of contents of { 788. of assignment, primariness of, 9. as proof of assignee's authority to sue, 9. of corporation, when presumed duly executed, DEED Continued. when seal sufficient proof of delivery of corpor- ate, 36. misnomtT of corporation in, 31. parol to prove presentation to and approval by corporate board, 37. authority of agent of corporation to execute, 36. corporate acceptance of, 87. when heir not excluded from being witness in action to set aside. 63. as hearsay of facts of family history, 93-95. description in, to show intent of residence, 108. of real property, advancement by, 152. consideration of, to show value of an advance- ment, 156. title by, requires assent of successor in interest, 157. declarations to show time or character of deliv- ery of, 158. between third persons of adjoining land to show title, 159 n. to married woman, parol to explain, 169. to wife of property paid for by husband, effect of, 171. to husband improperly obtained with wife's means, 171. of wife, authority of husband to deliver, 182 n. impeachment of married woman's acknowledg- ment of, 175 n. nnder private seal of officer, when presumptive- ly in official capacity, 195. of partner in firm name, effect of, 216. parol to explain, 217. agreement to execute, as constituting partner- ship, 227 n. void for adverse possession, 710. DEFAULT, foreclosure of mortgage, 720. DEFEASANCE, oral defeasance of written agree- ment, 412,722. DEFECT, notice of, in actions for negligence, 591. DEFENCES and counterclaims distinguished, 835. generally, 786, etc. against holders of commercial paper, 440. DEGREE, books of college to prove professional, 47. DELA V, actions for, against common carrier, 568. excuses for, in divorce, 74(5. DELIVERY, assignment of uncanceled nego- tiable paper by, 3. of assignment, 6. of contract between vendor and purchaser, 726. when corporate seal sufficient proof of, 36. of gift causa mortis, declarations of decedent as to, 60. to husband and wife, intent as to which, 170. of money, inaction for money lent, 239. presumed payment of an obligation, not aloan, 243, 799. of chattels, as an advancement, 154. of checks to show payment, 803. of property, payment by, 80(5. of new notes iu composition with creditors, 816. of release, when presumed, 817. of sealed instrument, 507. of lease, 524,527. of deed, 694. parol declarations to show time or character of, 158. of wife's deed by husband, authority for, 182 n. failure to prove, in action for price of goods, 286. ordinary sale by, 237. delivery to satisfy the statute of frauds, 292, 318. of memorandum of sale, 293. of written instrument, parol to show want of due, 294 n. of a bill of the goods, effect of, as to price, 306, and payment, when presumed concurrent, 313. or offer o I goods, when and how shown, 314. and acceptance of labels for liquor bottles, when evidence of acceptance of all, 319. account kept by party as evidence of, 326. of goods, time and place of, 312. under special contract different from one al- leged, 332. on bo,rd ship, 498. GENERAL INDEX. 851 DELIVERY Continued. plaintiff's readiness for, in action for non-ac- ceptance, 337. action against seller for non-delivery, 337. readiness of buyer to perform, in action for non- delivery, 338 destruction ol thing sold, to excuse, 339. of negotiable paper, 404, 449. of notice, presumed from ordinary course, 433. of policy, 477, 478, etc. to common carrier, 563. by carrier, 576. to drayman, 567. of instrument after performance of contract, 575. DEMAND, excuse for omitting must be pleaded, 435. on public officer, 196. on or by firm, 219. on partner after dissolution, 220. before suit against trustee, 234. retaining money obtained by agent after, 242. on non-payment, in action for money paid, 258; of check. 244. of negotiable paper, 419, 422. to sustain action for money paid, 265. before action for money received, 278, 281. and refusal, when necessary before action on sale, 330. for interest on sale from time of, draft equiva- lent to, 331. by buyer, when unnecessary in action for non- delivery, 338. of rent in action on lease, 532. in case of bailment, 556. as evidence of negligence, 571. as evidence of conversion, 626. in action of replevin, 690. and default on foreclosure of mortgage, 720. of performance between vendor ana purchaser, 728. oral or in writing, 627. DEMEANOR of injured person, 599. DEMURRAGE, actions for, 518. DEPOSIT, certificate of, in action against bank for money received, 277. DEPOSITIONS to prove books of foreign corpo- ration, 50. to take testimony of interested witness, 63 n. of decedent, effect of reading, 70 re. when not competent, as hearsay of facts of family history, 94, 96 n. DESCENT, title by, 707. DESCRIPTION in will, of person, 138, 139. fitting one, coupled with name fitting another, 141. applicable in part to different pieces of prop- erty, 143. of property, extrinsic evidence to reject false, 144, 145 n. explanation of ambiguity as to which of two parcels, 145, 146. usage as to boundaries, when incompetent, 146 n. of lands in a deed, 697, 699, etc. of goods, extrinsic evidence to show, 303. DESIGNATION, ambiguous ill lease, 527. of invention, 763. DESTRUCTION of will, when presumed, 124, 127. of articles of copartnership by partner, 226 n. of thing sold, to excuse delivery, 339. of negotiable paper sued on, 390. presumed from absence, 499. of leased premises, 532. DETECTIVES as witness, 747. DETERMINATION of contlicting claims, 717. DEVISE, title by, 707. prenuaptton of acceptance of beneficial, 157. DIAGRAMS and maps, 699. DILIGENCE in demand of negotiable paper, 425. in charging indorwr, etc., 425-432, etc. in mailing notice, 433. of agent, now proved, 559. in discovering fraud, 733. DIPLOMA, how proved by physician, 382. DIRECTORS, management of business by, when proof of user, 28. how proved to be, 769. compensation of, 381. Dill I ;< T( i It V, not evidence of address, 432. DISAPPEARANCE, presumption of death by, 74. DISCHARGE of advancement by cancellation of entry in account or credit, 154. of private debt of partner by firm obligation or funds, 222. before maturity to bar action on bill or note, 257. of indorsers by neglect, 246. of pre-existing liability, payment in, 200. of plaintiff, when admissible in action for wages, 358. of contract by cancellation of instrument, 408. of surety, by extending time, 445. in bankruptcy. 819. impeachment of, 820. in insolvency, 820. new promise to rebut, 821. DISCLAIMER of beneficial devise, 157. of title, parol declarations to show, 158. DISEASE, in life insurance, 501. evidence of adultery, 744. DISSENT by partner from entries in partnership books after dissolution, 230. DISTANCE to rebut presumption against partner from entries in partnership books, 230. forfeiture of, 784. DISTRESS of person, how proved, 599. DISTRICT COURT OF N. Y. CITY, proving judgment of, 541. DIVERSION of negotiable paper must be alleged, 442. of accommodation paper, 443. DIVORCE, actions for, 743. etc. competency of judgment for, 101. primariness of decree of, 179. pleading statute of limitations as to, 822 n. DOCKET of justices' judgment, 540. DOCKETING, in actions on judgment, 539. DOCUMENTS, issuing, receiving, or acting upon, when evidence of user. 28. testimony to appearance of for purpose of em- bodying description in record, 397. DOGS, injuries by, 045. DOMICILE, nature of the question of, 103. national character and, 102. presumptions and material facts, 103. rebuttal of evidence of residence to show, 103. change of, 105. naturalization, to show change of, 106. effect of intent in determining, 106. evidence of residence and of intent, 107. as to title and transactions of husband and wife, 164. effect of, on jurisdiction for issuing letters of administration, 57. DOWER, ancestor's seizin in law, sufficient to es- tablish, 157. provision in will in lieu of, 157. ejectment for, 707. DRAFT, of contract, when admissible, 362. admissible under allegation of note, 418. DRUNKENNESS, to affect testamentary ca- pacity, 115. how proved, 779. action for causing, 775, etc. DUE BILL, admissible under allegation of note, 418. actions on. 454. DUPLICATE contract of sale, 288. on face of instrument, explained, 421. of negotiable paper, 1,1. apparent duplicate notes in notice of protest, 432. proof of contract in, 528. DURATION of life, 602. DURESS to impeach contract, 788. - conveyance by wife. K.Y in obtaining consideration of deed to husband from wife's separate property, 171. actions to recover back money paid under, 268, 270. 852 GENERAL INDEX. DURESS- Continued. in written instrument, parol to show, 294 n. in negotiable paper, 4-4:). DYING DECLARATIONS, 587, 712. as to legitimacy, DO n. EARNEST, when giving of, docs not pass title, 817. EASEMENT, as an incumbrance, 530. in actions for nuisance, 640. EJECTMENT, actions of, 691. ELECTION, returns of, 749. color of, to constitute color of office, 193 n. to constitute officer de facto, 201 n. to office in corporation, 769. certificate of, presumptive of title to office, 194. of officers, books of municipal corporation as to, 47. of one of two residences for domicile, when insufficient, 107. EMBEZZLEMENT by agent, in action for money received, 280, 281. EMOTIONS, 077. in crim. con., 685. EMPLOYER, which of several was real employer, 360. EMPLOYMENT, negligence in, 592. of unfit servant, 593. ENACTING CLAUSE, 771. ENDORSEMENTS, secondary evidence of, 390. as evidence of title, 403. as a transfer of title, 415. of negotiable paper, 413. legal objects of, 414. extrinsic evidence of date, 416, 808, 825. of payment as admission, 416, 808, 825. ENJOYMENT, actions on covenants for, 520. ENTICING AWAY, actions for, 681, etc. good faith in, 682. ENTRIES in course of business, date presumed correct, 14 n. copy of, 50. in corporation books, 52. in corporate records, presumptively made on their date, 49. ^erasures in, 49. in corporate accounts, 52. against defendant in action by receiver, 232. when unnecessary to produce officer who made, 53. mistake or neglect of secretary in not making, 52. by physician, in register of births, 87. of births, deaths and marriages in family Bible or other book, 93. in register of fact of family history, how proved, 97. impeachment of, 99. primariness of book or paper to prove absence of, 99. in hotel register, as to intent of residence, 108. of testator in accounts, to identify property, 144. to show intent as to an advancement, 151. referred to in will, as showing advancement, 156. by donor in account, to show advancement, 154. in partnership books, not conclusive of firm transactions, 205. when presumptive against partner, 229. competent against all partners, 218. to prove partnership, in actions between part- ners, 226. of attorney in accounts, when competent in ac- tions between partners, 226 n. by deceased partner, when presumptive proof, 225 n. supplementary oath of partner to, 205. as showing to whom credit was given, 619. in creditor's book as to whom credit was given, 241, 245 n. to show to whom credit was given, 302. by creditor, to show application of payment, 811. in payer's accounts, to show payment, 808. in bank-book or pass-book, 245. in check-book, 241, 259 n. for incidental purpose, not primary of loan, 243. ENTRIES- Continued. intentional character of false, to explain mo- tive and intent, 281. of copy of letter in letter book, ?90. in shop books, 373. when prima facie of price and value, 306. as auxiliary to oral testimony, 319. as memorandum to refresh memory, 320. made on information received from third per- son, 322 n. made by party from memoranda of servant, 324. by plaintiff in his books, as admission of de. fendant, 327. of sale by broker, authority to make necessary, in broker's book as constituting the contract, 329. of acts in protesting, etc., 429. admissibihty after proving correctness of items, 461. by principal adduced against surety, 513. in record of judgment, 536. as evidence of delivery, 564. mode of proof against carrier, 564. characterizing possession, 711. as part of res gestce, 265, 326. of payment, 245, 799. to show payments instead of loans, 245 n. to show credit to wife, 182. in ejectment, 707. EQUITABLE ESTOPPEL, need not be pleaded, affecting title to land, 713. EQUITIES as to commercial paper, 447. ERASURE in entries in corporate records, 49. as affecting credit of account kept by party, 325. testimony as to, 397. in negotiable paper, 406. (And see ALTERATIONS.) ERROR in telegraphic dispatch, 604. ESCAPE, action for, 609. ESCHEAT, proof to sustain, 86. ESCROW, wrongful delivery, 448. sealed instrument delivered in, 507. ESTOPPEL in dispensing with proof of corporate existence, 19. in place of proof of incorporation, 20, 30. by admission of incorporation, 28. to sustain validity of corporate acts, 33. against corporations, 28. against those dealing with corporations, 29. against members and subscribers of corpora- tion, 29. liberally applied for and against corporations, of stockholder from denying his title, 768. of directors of corporation from denying au- thority of agent, 34. conclusiveness of minutes of corporate agents by, 52. as proof of official character of executors and administrators, 56. parol declarations of disclaimer of title consti- tuting, 158. by silence or acquiescing, admissions of wife, 166, 167. wife joining in deed, when not estopped from showing intent, 171. of wife denying her acknowledgment, 175 n. by admission of one joint proniissor, 189 . when officer not estopped by return contrary to fact, 197 n. as to ownership of property, 200. of officer as to official character, 198. by former judgment, 196. by representation of partnership, 220. of trustee by receipt for money, 235. by judgments, 237. of borrower of money by an agent, 242 n. of defendant denying receipt of money, 275. waiver of stipulation as to time in contract of sale, as, 314. as to genuineness of signature, 392. as to authority to sign or indorse, 400. of bank by cashier's answer to inquiry, 402. in respect to indorser's address, 431. GENERAL INDEX. 853 ESTOPPEL Continued. account stated, is not, 458. by oral submission to arbitration, 466. from relying on false recitals, 479. by preliminary proofs, 490. founded on iQence, 510. by recital in bond, 513. of tenant, 528. in case of attornment, 530. of bailee, 554. as license, 638. in case of dower, 707. by deed. 713. by certificate of no usury In loan, 792. l>y former adjudication, 827, 829. by judgment rendered upon one of several causes of action, 828. of licensee of patent, 756. as to title of patent, 762. between vendor and purchaser, as to title, 727. EVICTION, 520. of tenant, 530. from lease, 534. of agents or bailees, 554. as proof of breach of warranty of title, 347. EXACTION of tolls, 771. EXCEPTION in statute, 772. EXCISE LAW, actions for violation of, 774. EXCLAMATIONS. 599. EXCUSE, what allegation admits, 372. not admissible under allegation of act, 435. for omission of demand, etc., not admissible under allegation of demand, etc., 423. for non-performance must be pleaded, 511. for breach of contract for services, 370. for non-presentment of commercial paper, 421. EXECUTION, primariness of, to show issue and return, 736. return of in creditor's suit, 741. in actions against executor or administrator, 161. to show insolvency of surviving partner, 226. payment of, by third person to sustain promise to repay, 251 n. not evidence of payment of judgment, 539. return of, to repel presumption of payment of judgment, 813. exemption from, 607, 633. action for failure to serve or collect, 606. sale of land, 702. as evidence of title, 624. wrongful levy of, 630. of assignment, proof of, 6. of written instrument, parol to show want of due, 294 n. of will, formalities of, 111. when presumptive of testator's knowledge of contents, 135. clandestine, to show undue influence, 120. presumption of alterations before, 133. proof of alteration before, 134. of lost or destroyed will, secondary evidence of, 126. proof that a sheet was not in will at time of, 135. of negotiable paper does not include validity, Six). EXECUTORS AND ADMINISTRATORS, ac- tions by and against, 54. nature of official character and title, 54. evidence of character as such. 403. distinction between individual and official capa- city of, 55 and n. necessity of proof of title under pleadings, 55. sufficiency or suing or being sued " as," 55. appropriate mode of proof of official character of, 56. effect of letters as evidence, 56. impeaching letters of, 57. best and secondary evidence of authority of, 58. will without the probate, when not competent of right of, to sne, 110. extrinsic evidence to show identity of executor named. Kill. declarations and admissions of, against estate, 53. EXECUTORS AND ADMINISTRATORS Cont. decedent's declarations and admissions, for or against, 59, 60. admissions and acts of, against whom incom- petent, 159. admissions of, as to insolvency in actions to charge heir, 161. not prejudiced by admissions of heir, l."9. bound by judgments against predecessors or de- cedent, 60. judgment against, effect of on heirs and devi- sees, 160. testimony of, when to be taken as a whole. 60. preliminary question of competency of witness against, 66. testimony of interested persons against estate, 60,63. New York rule as to, 62. who excluded from testifying in actions by or against, 62. assignor or source of title, when excluded, 64. who protected by exclusion of interested party or witness, 64. objecting to testimony of witness against, 65. striking out incompetent part of testimony for or against, 66. what is personal transaction or communication with deceased, f>7. assignor and assignee excluded from testifying to personal transactions with testator, 10. proof of interview with deceased, 67. witness not to testify negatively as to interviews with deceased, 67. what indirect evidence of personal transactions with deceased excluded, 68. effect of exclusion of transaction with deceased, 69. effect of objecting party testifying to transaction with deceased, 69. form of offer of testimony in rebuttal of trans- action with deceased, 70. rule in United States Courts as to exclusion of transactions with deceased. 70. when chargeable with interest from time of pre- sumed death, 78. of deceased partner, actions against, 225. admissions and declarations of deceased partner as to title competent against his adminis- trator, 225 n. tax collector's receipt as proof of payment of taxes by administrator, 201 . payment to, 802. service of protest on, 430. bond of, action on, 514. sale by surrogate's order, 703. EXEMPLARY damages for criminal acts, 781 n. EXEMPLIFICATION of judgment, 536. of state grant, 705. EXEMPTION from execution, 633. EXPERTS, examination as to qualifications, 369. cross-examination as to qualifications, 394. testimony of. when controll'mi:. -1!M. ground of opiniou called for ou direct examina* tion, 3!)7. examined by hypothetical questions, 591. in handwriting, 397. qualification as to handwriting, 397. as to signatures, 501. opinion as to seal, 506. as to genuineness of sismatures to will, 113. as to cause of injury, 571. in case of negligence, "i^ii. as to injured person. COO. as to quality and value. 310. 311. mode of testifying to mental capacity of testatoi by, 116. 'in language or writing, to explain will. 180 n. testimony of, as to alteration in will. 134. designating a particular tiling as "like" the thing in controversy. 311. as to quality of article in action on breach of warranty, 317. adjustment in insurance. 492. to abbreviated entrii nautical. 500. testimony as to damages, 511. 854 GENERAL INDEX. EXPERTS Con fin utd. to prove usage, 590. testimony of, as to indebtedness of judgment creditor, 738 n. as to liquor, 774. as to patents, 760. ~as to trade mark, 752. EXPRESS COMPANIES, action against, as com- mon carrier*, 563. etc. EXPRESSED malice, 666. EXTENSION of patent, 758. of time, discharging surety, 445. for award, 467. EXTINGUISHMENT of negotiable paper by re- newal, 446, 447. of earlier demand by settlement of later, 464. of rent by taking sealed security, 534. EXTRA work, how proved, 362. FACTORS, actions against, 559. participation in profits by 212 n. does not make partner, 211 n. s course of business in accepting bills to explain their possossion by, 259 n. demand noi presumed merely from lapse of time against foreign, 281. of foreign principals, when personally liable, 302. FAILURE OF CONSIDERATION, 441. of negotiable paper, 448. in sealed instrument, 511. FAILURE to mark patented article, 765. to serve or collect process. 606. to return process, action for, 610. FALSE IMPRISONMENT, actions for, 657, etc. justification and'initisration, 657. FALSE REPRESENTATIONS, of corporation by meeting, 37. in correspondence of officers or agents, 38. by agent in sale to his principal, 334. burden of showing, 330. in insurance, 492. in negotiation, 525. as ground of action, 614, etc. in actions between vendor and purchaser, 729. FALSE RETURN,, action for, 610. conclusiveness of return. 200 n. FALSE WARRANTY, in insurance, 492. FALSITY, of libel, 665. FAMILY, consorting as a, to show relation of parent and child, 87. domicile in place of establishment of, 104. presumption of removal of, on intent of resi- dence, 108. constructive revocation of will by change in testator's, 126. number of testator's, to show intent, 136. of testator, state of, when to be shown, 138. what connection with, sufficient to admit decla- rations as to pedigree, 92. FAMILY HISTORY, hearsay as to facts of, 90, 91. relationship by marriage, dissolved by death, no effect on declarations as to, 91 n. competency of records of, 92. declarations made in view of controversy, 95. general repute beyond family, 95. best and secondary evidence of, 96. registry of facts of, 97. not authorized by law, 98. primariness of, 99. impeachment of, 99. judicial records showing facts of, 100. judgments and verdicts to show facts of, 100. (&> alto PEDIGREE.) FEAR, of legal process, not sufficient for duress, 270. FEELINGS, how proved, 502. FEES, liquidated by taxation, 606. FELONY, compounding, 790. FICTITIOUS PERSON, in commercial paper, 399. in bank check, 453. evidence of misspelling of name, 422 n. FILES, papers not necessarily part of record, 538, 539 n. FTLlA'ci, notice of mechanic's lien, 767. FIRE, a* excuse for bailee, 556. FISHERIES, domicile of fisherman, 105 n. FIXTURES, how proved, 624. FIXTURES Continued. parol to explain, in contract between vendor and purchaser, 726. FOOD, implied warranty of provisions for, 343. FOOT, in measurement. 365. FORECLOSURE, of mortgage, 719. demand and default, 720. vendor's lien, 719. by advertisement, 701. to repel presumption of payment, 813. authority for, none to rec.-ive part payment, 801. FOREIGN BILLS, and notes, protest of, 425. FOREIGN CORPORATION. (See CORPORA- TION.) FOREIGNER, presumption as to knowledge of law, 790. FOREIGN JUDGMENTS, actions on, 550. as an estoppel. 829. FOREIGN LANGUAGE, interpretation of will written in, 132. FOREIGN LAW, to be alleged and proved, 790. how proved, 22. of marriage, 85. to prove a limited partnership, 220. as to license, 358. as to medium of payment, 410. as to rate of interest, 411. as to negotiable paper, 411 n., 418. application of the rule against varying writing, by parol, 415. as to protest, 427. as to usury, 791. as to infancy, burden of proving, 796. FOREIGN LICENSE, presumption as to, 358. FORFEITURE of corporate existence, by mis- user or non-user, 31. of franchise, 750. of lease, how waived, 530. proceedings in rern., for, 783. FORGERY, evidence as to handwriting, 397, 789. of negotiable paper, 441. FORMER ACQUITTAL on charge of negligence, 602. FORMER ADJUDICATION, general rules as to, 826. form of, 830. record to be produced, 831. parol to explain record of, 833. what questions were determined by, 832. what parties affected by, 829. in action for breach of warranty, 350. as bar to action for wages, 375. under covenants fur title, 519, etc. in an action under Civil Damage Act, 783. in libel, 671 . in actions for nuisance, 643. impeaching judgment, 549. when admissible in action for deceit, 621. of assault, 649. as evidence of title to land, 713. former recovery as merging the cause of action, 827. * as nu estoppel, 827. splitting caiif-e of action, 827. what questions are concluded by, 828. construction of instrument by, 828. of what courts and tribunals an estoppel, 829. by court of exclusive jurisdiction, 829. against one of joint defendants, 830. set-off, when not barred by, 834. rebuttal, want of jurisdiction, 834. fraud, 834. appeal, or reversal, 834. new title, 834. FORWARDERS, actions against, 560. FRANCHISES, action to annul, 750. exercise of, as proof of de facto corporation. 123. FRAUD, cause of action lor, when presumptively assigned, 3. actions for damages by, 614, etc. an assignment, when immaterial, 5. in obtaining charter, 31. of directors or managing agent, under allegation of fraud of corporation, 38. in obtaining letters of administration, when ground for impeachment, 58. GENERAL INDEX. 855 FRAUD Continued. declarations of testator, when not received as statement of facts of, 115. in producing undue influence, 120. declaration and conduct of testator to show susceptibility to, 122. in obtaining will, 1S3. in destruction of will, 127. by deceit of testator as to his will, 131. in bavin" words inserted in a will, 135. effect of insertion of one name for another by, 147. in making advancement, declarations of donor as part of res c/estee, 154 n. declarations of one of several joint legatees or devisees to show, 159, ItiO. presumptions of, in transfers of property to wife, 164 n. of wife by silence, necessary to estoppel in favor of husband or his creditors, 167. to rebut presumption of intent of husband to make provision for wife, 171. consideratiou of deed to husband from wife's separate property obtained by, 171. declarations of husband making gift, when not competent to establish, 172. to impeach conveyance by wife, 175. action against married woman for, 185. to render inadmissible admissions and declara- tions of one in joint business or liability, 190. presumption of innocence of public officer charged with, 199. in purpose of forming a firm, 211. by one partner, competent against others, 217. in inducing new partner to assume debts, 230 n. by trustee in compromising claim, when burden of showing on ct-slvi que trust, 236. parol to show constructive trust in case of, 237. ill obtaining credit, when proved as part of res gestce, S46. action to recover money paid under, 268, 271. allegation of, in action for money received, 274. in sale of goods, effect of failure to prove, 285. in written instrument, parol to show, 294. in entry in book as to whom credit was intended to be given, 303. in obtaining signature of negotiable paper, 441. credit for goods, effect of time of payment, 313. in respect to negotiable paper, 443. burden of proving, in by-bidding, 331. warranty as means of, 880. in inducing acquiescence in quality, 343. shown l>y inadequacy of consideration, 405. between principal and guarantor, 475. in sealed instrument, 511. a< ground for reformation, 512. by factor, 559. proof of, by demand and refusal, 571. misrepresentation admissible under allegation of mistake, 485. against common carrier as to value, 575. proof in replevin, 690. in procuring execution of contract, 787. in account stated, 815. in composition and compromise of debt, 816. to avoid release, 818. to suspend statute of limitations, 823. to rebut former adjudication, 834. in infringement of trade mark, 752, 754. nsa ground 'o divorce, 743. in actions of replevin, 690. evidence of, to let in grantor's declarations, 740. tona.fl'te purchaser, 715. inaction between vendor and purchaser, 729. to impeach instrument, 732. in voluntary settlement of insolvent debtor, 738. deficiency of land to (sustain inference of, 729. cancellation of instrument for, 732. in obtaining patent, Tti.'i in action by judgment creditor, 737. (See also ST \TTTK OP.) FRAUDULENT INTKNT in forfeiture case, 783. FRAUnn.KNT REPRESS STATIONS M to or- ganization or condition, primariness of corporate record, 48 n. FREEZING. 571. FREIGHT, declarations or admissions of railroad officers as to, 44. payment of, to show delivery through carrier, 816. usage as to paying for freight of goods sold, 316. proof of interest in, 496. FULL FAITH AND CREDIT of judgments of other states, 541. GAMING CONTRACT, optional contract for fu- ture sale, not presumed to be, 314. GENERAL DENIAL, what admitted by, 686. in action for services, 373. GENERAL REPUTATION, to prove authority of officer or agent, 40. of existence of partnership, 210. GESTURES, 599. GIFT distinguished from sale, 776. adequate proof of, 4. causa mortis, subsequent declarations of de- ceased as to delivery of, 60. in will, mistake in making, 135. rules for deciding between claimants of same, 140. claims of legatee on testator to show intent as to, ambiffuous, 136. extrinsic evidence in case of, to charities, 141. to change nature of, 146. as to administrative character of, 147. as to presumptively cumulative, 148. to child, when not an advancement, 151. of real property, when presumptive of an ad- vancement, 152. parol to show an advancement, 154. delivery of money or chattels to child by parent presumptively, 154. declarations of donor as to, when competent, 155. by husband to wife, or vice versa, 169, 172, 173, 174. to married woman, intent as to, 170. circumstances under which made, to explain, 234. specific performance in case of, 731. GLASSES, evidence of liquor business, 774. " Glassware in casks," what is, 485. GOOD FAITH, 621. in transfer of negotiable paper, 449, 450. in false imprisonment, 658. in act contrary to statute, 773. seduction, etc., 682. shown by advice of counsel, 655. by taking advice, 602, 741. GOODS, grounds of action for price of, 285. payment under duress to recover possession of, 271. requisite memorandum of sale of, 292. performance by seller before passing of title, 317. title proved by bill of lading, 487, 572. tender of, 816. GOVERNMENT, when not bound by declarations of officer or agent, 195. GRANT, a will not, during testator's lifetime, 131. when pn-siiincd, 709. GRANTOR'S admissions and declarations as to title to land, 710,740. GROANS, 599. GROSS NEGLIGENCE, admissible under general allegation, 583. GRATUITOUS service, how proved, 359. bailment, 557. GUARANTY by indorsement of non-negotiable paper, 438, 4r>7. action on, 471, etc. GUARDIAN ad lltem, on ground of insanity, to show incapacity of witness, r,;,. rule in U. S. Courts us to testimony of transac- tions with ward, 70. change of domicile of ward. 103. declaration of, that payment was with ward's money, 2t>4 n. implied promise of. 379. <;i I I/I'. < itrcncy of evidence to prove, 494. HAND-BILLS, offering reward. :is.-j. advertising loss of negotiable paper, 450. libelous, 663. 856 GENERAL INDEX. HANDWRITING, qualification of witness as to, 398. modes of proof, 393, etc. of recording officer, as authenticating corporate record, 49. of deceased writer of corporate minutes, 49 n. in family Bible, 93. of letters relating to facts of family history, 94. of entry in renter authorized by law, 97. not authorized by law, 98. of deceased officer who made entry in record of public nature, 99. of testator, 112. of subscribing witness, 112, 506. of ancient document, 709. of ancient will, inability to prove, 128. . entries in, of deceased partner, 235 n. of clerk in bank-book, or pass-book, 245. in order for goods, 291. comparison of, 307 n, 396. of memoranda by third person in course of busi- ness, verification of. 322. HEALTH, incase of life insurance, 501, 502. HEALTH BOARD, determination of, 642. HEARSAY, insufficient proof of corporate seal, 35. testimony as to death as, 72. as to place of birth or death, 51 n. certificate of marriage as, 80, 99. as to one's being an " heir," 91 n. of defect of heirs, etc., insufficient to sustain escheat, 86. as to pedigree, 87. as to facts incidental to pedigree, 89. grounds of receiving and weight, 90. by whom proved, 91. as to facts of family history, 90. family records as, 92. general family repute, 94. repute beyond family, 95. declarations made in view of controversy, 95. judgments and verdicts, 101, 827 n. of general repute in family, 94. to render entry in record competent, 97 n. letters of administration as, 100. exclusion of, in interpretation of wills, 131. declarations of testator as, 115. expert's opinion of mental capacity of testator from, 117. testimony of third person to confidential com- munications, 166. of one party having common interest or liabil- ity inadmissible against other, 188. as to partnership, insufficient, 204. in actions against partners, 210. as to boundaries, 700. as to contract, in action for specific perform- ance, 730. HEIRS, actions by and against, 71. exclusion of, as interested party or witness, 64 n., 65 n. admissions of, raising presumption of payment to ancestor, 69. death of intermediate, without issue, 85. presumption of, from persons dying intestate, 85. presumption that every one leaves an, 86. hearsay of defect of, in escheat, 86. hearsay as to one's being, 91 n. construing rights of tinder a will, 131. presumptions and burden of proof as to intesta- cy of ancestor, 109. extrinsic evidence as to bequest to, in advance, 148. title and declarations of, 156. declarations of ancestor as to title against, 157. admissions and nets of executor and adminis- trator against, 159. admissions of, against executor, 159. effect of judgment against, on devisees or exec- utors or administrators, 160. action to charge, with ancestor's debts, 161. HIGHWAYS, action for obstructing, 773. nuisance, 641. HIRE of personal property. 356. HIRERS of chattels, actions against, 356, 560. HOLDING OUT of agent, as authorized, 41, 400, HOLDING OVER, raising estoppel, 529. of corporate office, 769. HOLIDAYS, 519. under contract for service, 365. HOURS, in a day's work, 366. HUSBAND AND WIFE, actions by or against, 163. burden of proof and presumptions of marriage, 79. public recognition of relation of, 81. presumptions from the marital relation, 164 n. husband when treated as next of kin to wife, 65 n. domicile of wife that of husband, 105. change of domicile by wife after divorce, 106. husband's title. 168. wife's title, 169. transfer by one to the other, 172. tacit transfers, 173. transfers between, the old rule, 173. the new rule, 174. foreign law applicable to title and transactions of, 164. estoppel of married women, 167. application of wife's funds, 174. of wife's conveyance, 174. impeachment of, 175. wife's separate business, 175. agency of one for the other, or of third person for either, 167. wife presumed husband's agent, 777 n. judgments against married woman, effect of 168. deed by, as hearsay of facts of family history, 94. debt by husband, when not advancement to wife, 155 n. as witnesses, 164. marital relation affects weight, but not compe- tency of, 163 n. or interested party or witness, when not to testify, 62 . exclusion of wife as witness to transaction of husband with deceased, 68 n. admissions and declarations of, 165, 241. business transactions between, not confiden- tial communications, 165. actions by husband, 176. founded on marital right, 176. for enticing away wife, 681. for crim. con., 684. defenses to actions by husband, 176. actions against husband founded on marital obligation, 1<7. on wife's agency, 177. defenses to, 177. for necessaries, 178. causes of separation, 179. actions by married woman, 180. evidence of contract, 180. for tort, 181. actions against married woman, 181. pleading in, on contract, Isl. for necessaries, 185. for fraud, 185. elements in proof of contract of married woman, 181. making of contract by married woman, 182. charging separate estate, Eugiisli rule, 182. New York rule, 183. direct benefit to separate estate of wife, 184. husband's coercion of wife, 185. request to advance money to wife to sustain action for money lent, 240. funeral expenses of wife when recoverable from him as money paid. 24!). HYPOTHETICAL questions to expert (in negli- gence), 591. nm~~ IDENTITY, necessity of proof of, 101. of corporation named in will, 138. of society in case of charitable gift, 111. of property mentioned in memorandum of auc- tion sale, 32S. of names in commercial paper, 398. in due bill, 244. of maker or drawee of commercial paper, 424. of person served with notice of protest, 430. GENERAL INDEX. 857 IDENTITY Continued of parties to judgment, 538 to former adjudication, 830. in description of can son of action to show former adjudication, :!->. of the tiling, in actions for conversion, 622. -in replevin, (588. of premises in action on lease, 527. of thing mentioned in 11 will, 130 n. of person, mode of proof, 102. when presumed, from identity of name, 505. named in will, 130 ., 136, 13'J. designated inexactly in will, 1 10. to whom tender of goods was made, 316. named in letters of administration, 56. committing assault, 640. (See also MISNOMER and NAME.) IDIOCY, 734. of testator subsequent to execution of will, 114. IGNORANCE of whereabouts of corporate books, 51. of testator in case of uncertainty as to charit- able society, 141. to explain misnomer in will, 142. of one being a dormant partner, 210. of partnership, in question of to whom credit was given, 216. of others, of torts of ono partner, 217. in question of mistake, 209. of usage, 296. not material if assent is proved, 362. of the law, by attorney, 557. proved by testimony of party, 620. ILLEGALITY of assignment, 5. of written instrument, 294 n., 789. of wagering sale, 336. of negotiable paper, 441. of conduct of plaintiff, suit for negligence, 603. of contract respecting thing converted, 628. to impeach contract, 789. ILLEGITIMACY removes presumption of one leaving an heir, 86. statement of, in registry of baptism, 87 n. of child born before marriage, 88 it. parents 1 testimony and declarations as to, 89. proved by hearsay, 91. decree of probate court to prove, 100. ILLICIT intercourse, 685. ILLITERATE PARTY, execution by, 443, 512, 788. IMBECILITY, test in case of, 114 n. declarations of testator to show, 115 n. testimony of witness to show, 118. IMPAIRED POWERS, by injury by negligence, 598. IMPEACHMENT of title of assignee, 8. of power of officer resting on consideration, 82. of corporate acts presupposing other acts, 34. of second marriage, 8.'!. of registry of facts of family history. 99. of record of judgment of naturalization, 102. of decree of probate of will, and of surrogate's jurisdiction, 111. of letters testamentary or of administration, 57. of validity of testamentary act, 132. of part of will, 135. of subscribing witness to a will, 112. of acknowledgment by married woman, 175 n. of process for want of jurisdiction, 1U7. of one testifying, being partner, by schedule in insolvency, 221 n. of writing by parol, 294. of seller who has testilied to sale, 332. of contract, 787. by incapacity of contracting party, 796. on ground of insanity, 797. in actions for reformation or cancellation, 732. of receipts, 807. of release, HIS. of discharge in bankruptcy, 820. of instrument, in action for reformation or can- cellation, 732. of convi yanco, mortgage', assignment or ante- nuptial settlement, 7W. JMPEKKKrT UECOKDS, in actions on judg- ment, DUG. IMPLIED promise to pay for use and occnpa tion, 351. for hire of chattels, 356. for services, 358. covenants in lease, 526. malice, 666. IMPOTENCE, as a ground for divorce, 743. IMPRESSION of witness hearing slander, 664, as to adultery, 745. IMPRISONMENT, actions for false, 657, etc INCAPACITY of party should bo alleged, 440. not presumed, 705. illiteracy, 443, 512, 578. of contracting party, 462. INCENDIARY, circumstantial evidence of, 496. 1NCUMBRANCES, actions ou covenants against, 520. INDEMNITY, parol, to prove promise of, 255. by surety, 255. implied promise of, for moneypaid, 256. relation of, and Judgment paid, to show amount due in action for money paid, 202. failure to prove allegation of, 286. for lost negotiable paper, 390. INDIVIDUAL LIABILITY of stockholders, etc., 768. INDORSEMENT of bill, when insufficient proof of payment, 258 n. of memoranda of protest, 429. before payee's indorsement, 436. restrictive, 444. to show payment, 809. of payment on negotiable instrument, 446. whether before or after maturity, 443. of guaranty on instrument, 472. of bill of lading, 488. iti handwriting of debtor as an acknowledgment of debt, 824. acknowledge g part payment, 825. INDUCEMENT, In actions for slander, etc., 659. INEVITABLE accident exonerates common car- rier, 577. INFANCY, inspection to decide question of, 87. proof of !>y physician's testimony or account, 87. to impeach contract, 796. new promise, admissions and declarations, 796. rescinding contract on ground of, 735. INFANT, services by, 35!. contract for services, 382. contributory negligence of, 597. selling liquor to, 778. INFORMATION of facts of family history, source of. when to be given, 91. INFRINGEMENT of trade marks, 751. of patent, 759. INHABITANTS, knowledge of. not binding ou municipal corporation, 45 n. INITIALS, use of, by testator in bequest, 133 and n. INJURY by negligence, manner of, 594. by animals, actions for, 045. by assault, opinions of witnesses. filO. INK, opinions of witness respecting, 307, 407. INNKEEPERS, actions against, 560. sign of, 774, 777. INNOCENCE, presumption of, in civil cases, 495, 670 n. in aidofcircumstanc.es showing death, 73. in favor of party to marriage. 7'J. insufficient to sustain marrri.i of public officer charged with fraud or con- spiracy, 199. of others of torts of one partner, 217. presumption of legitimacy, additional to that of, 88. of compounding felony, acquittal not conclu- sive of, 7!W ii . INQUIRY, as to absence for seven years. 75. for children, to show failure of issue, 86. to sustain escheat, 86. as to infancy, 87. partner's discharge of private debt with firm funds, to charge debtor with, 222. in trade as foundation of knowledge of value, 311. 858 GENERAL INDEX. INQUISITION, taken by sheriff's jury, 612. in lunacy, effect of, 119, 7.J4. jjrlmafaeie of incapacity of witness, 65. as evidence of testamentary capacity, 119. INSANITY incapacitating witness, 65. domicile of nan. compos, 106 n. lucid interval, 114. sudden change in habits, and suicide, 115. hereditary, of testator, 119. to excuse production of maker of memoranda in, 322 w., 823 n. in case of life insurance, 501. to impeach contract, 797. to rescind contract, 733. value of services in question of, 379. INSCRIPTION on signs or labels, 591, 774, 777. INSOLVENCY, assignee in, authority to sue, 9. schedules in, to impeach witness testifying to being a partner, 221 n. of agent, in proof of embezzlement, 281. to show to whom cred_it was given, 303, 360. of buyer to show rescission of sale, 335. warranty against, 340. not relevant to charge of alteration of commer- cial paper, 408. . bankruptcy conclusive of, 474. ehown by execution, 559. of debtor in execution, 607. false representations as to, 616. mode of proof, 616, etc. of buyer and fraud, 625. in creditor's action, 740. to repel presumption of payment, 813. discharge in, 820. INSPECTION, sufficient criterion to decide ques- tion of infancy, 87. of goods sold, proof and conclnsiveness of, 315. by judge, of account kept by party, 325. of injured limb, 599. INSPECTORS of election, 749. INSTRUCTIONS of factor, how proved, 559. to carrier, 565, 567. to sheriff or marshal, 607. such as to exonerate sheriff, 613. INSULTING acts, 667. INSURABLE interest, 486. INSURANCE, actions on, 476. varying policy by parol, 7, 483. estoppel of member from questioning corporate character, 29. of vessel, payment of, as proof of death, 74, 96. stock and premium notes of company. 455. moneys for, do not mitigate damages, 603. INTEMPERANCE of workmen, 368. as evidence of negligence, 585. how proved, 735, 779. INTEMPERATE HABIT, how proved, 778. INTENT, in implied assignment, 2. of attorney in buying, 5 n. to ratify acts of officers or agents, 43. as to gift causa mortis, declarations to show, 60. in making transfer to deceased. 69 n. in deciding domicile, 104, 105, 106. to change domicile for purposes of education, 106 n. as to residence, how proved, 107. of testator in will, 131. direct evidence of, 143. ascertained by language of will, 132. to devise real estate, what incompetent to show, 146 n. to give different estate from that expressed, 146. to make apparent beneficiary trustee, 146. as to ademption of legacy, 149. rebutting evidence as to, 132. declarations of testator as to, in rebuttal, 136. time of, bearing on, 150. in explanation of ambiguity as to parcels, 146. execution of will presumptive that it conforms to, 135. as to revocation of will, 123. from its disappearance, 124. declarations of testator as bearing npon, 124. effect of, on constructive revocation, 126. to defraud Dy destruction of will, 127. INTENT row (in ued. extrinsic evidence to aid in showing, 129 130, andn., 131. as to bequest to heirs or next of kin in ad- vance, 148. situation and circumstances of testator to show, 136. as to corporation namod in a will, 138. extrinsic evidence to show in latent ambiguity, 140. of testator as to claimant under will, 141. as to donee, circumstantial cvid'-nce of, 141. as to giving property, extrinsic aid to, 143. legal consequences of expressed, not to be varied, 147. as to same sum given twice to same legatee, 148. as to execution of power, how shown. 150. of donor in making an advancement. 151. to make an advancement, extrinsic evidence of, 156. as to advancement by deed of real property, 152. of parent in purchase in name of child, 153. shown by entries in account, 154. declarations of donor to show, 155. of deed to a married woman, extrinsic evidence of, 169. as to gift to married woman, 170. of husband in conveyance to wife paid for by him, 170, 171. to make gift to wife, when sufficient, 172. declarations of husband to show, as to wife's property, 173. in tacit transfers between husband and wife, 173. of husband to reduce wife's choses in action to possession, 176. of married woman to charge separate estate, 181 n., 183, 185. of contract of officer, 105. as to partnership in actions between partners, not to form partnership. 211 n. of others to ratify act of one partner, 217. to disprove partnership, 220. as to real estate being partnership property, 229. to create trust, parol to show, 238. to explain to whom credit was given, 216. of payment, to show to which of several credit was given, 241. books of party to show as to whom credit was given, 302. declarations of, to make request, in action for money lent, 241. as to application of payment, 265, 811. of party in making written contract, 269 n. to waive tort and rest on implied promise, 274. similar transactions to explain, 279. false entries to explain, 281. to make invoice relevant, 289. to ratify act of agent. 299. to give credit to agent instead of principal, %01. to make factor for foreign principals liable, 302. illegal, in optional contract for future sale, 314. of person delivering or accepting goods, 315. as to passing of title on sale of goods, 317. by delivery of bill of lading, 318. secret, in abbreviations and symbols in account, 325. in sale by agent to his principal, 334. to mislead through by-bidding, 334. as to giving warranty, 341. to warrant on executed sale, 342. effect of, on implied warranty on sale, 343. as to sale by sample, 343. to commit waste, 534. to deceive, 618. may be proved by testimony of party, 618| 620. in procuring execution of contract, 787. in making illegal contract, 790. to evade usury laws, 791. to take usury, 792, 793. conversation on sale of land to show, 723. to affirm contract by infant, 735. GENERAL INDEX. 859 INTENT Continued. to defraud, from possession of chattels after conveyance, 737. of debtor, in actions by judgment creditors, 739. of grantee, 739. in violating statute or ordinance, 772. in actions for assault, 648. proved by other offences, 775. of seller of liquor, 778. in infringement of trade mark, 752, 754. INTERES 1', actions affecting parties in a Joint or common, 186. admissions and declarations by real party in, 186. admissions and declarations of parties having common or several, 188. of parties having joint, 188. test of distinction between joint and common, 188 n. declarations of assignor of part, 11 n. three rules as to acts and declarations of as- signor against, 12. in profits, when insufficient to prove one a partner, 206. of partners presumed equal, 229. when allowed on sales. 330. oral evidence as to rate agreed, 411. reservation of, presumptive of usury, 793. INTERFERENCE in patent case, 763. INTERLINEATION in will without authority, 135." of words to complete sense, 134 n. in negotiable paper, 407. in record of judgment, 538. INTIMIDATION of wife by husband, 185. INTOXICATION, how proved, 603, 779. to rescind contract, 735. to show incapacity to make will, 116. as evidence of negligence, (303. action for causing, 775, etc. INVKNTION, novelty of, 756. prior knowledge of, 703. abandonment of, 764. INVENTOR, patentee the original, 757. INVOICE presumptive against agent, of amount of NUe, 280. relevancy of, in action for price of goods, 289. witness' knowledge of value based on. 310. as foundation of knowledge of market value, 311. description of goods in, as a warranty, 341. not precluding oral warranty, 345. presumed to exist, 559. as proof of contents, 566. as evidence of title, 624. IRREGULAR indorsement of negotiable paper, 436. ISSUE, burden of proof of, 85. presumptions a* to failure of, 85. possibility of, 724 . extinct'. Ni. consorting as a family as proof of, 87. proved by hearsay us to fuc.ts of pedigree, 91. by general reputation, 94. constructive revocation of will by birth of, 125. JUDGE'S certificate, to judgment of sister state, f. 13. JUDGMENT, nature of, nnder new procedure, .-,11 ,/. date of. 538. certified copy of, 535. exemplification of. 53ii. hWurn copies of. .Vili. imperfect record of. 536. of sister state, appearance, 548. clerk's attestation, 543. seal, 543. judge's certificate. 543. presumption in favor of jurisdiction, 541. limitations, 54i(. actions on. 535, etc. mode of proof, 195. lost, 538. docketing, 539. reversal of, 53y. JUDGMENT Continued. satisfaction of, 539. of N. Y. Courts, 540. of justice in New York, 540. of U. S. Courts, 549. foreign, 550. and deed pursuant to it, 701. how proved, to affect title, 714. primuriness of record to prove, 802. parol assignment of, 2. warranty on assignment of, 341 n. against decedent binding on executors and ad- ministrators. 60. to remove disqualification of party to testify, 63 n. exclusion of witness liable to be affected by, 63. a< to facts of family history, 100. identity of pen-on named in, 101. of naturalization, to show national character and domicile, 102. fixing character and amount of an advancement, 155. against ancestor, heirs, devisees, or representa- tives, 160. against executor or administrator, 161. against married women, effect of, 168. against one joint party, effect of, 186. effect of former, on public officer, 196. proof of by officer suing on process, 197. void for want of jurisdiction, 199. production of, as foundation of process, 202. against partners as proof of partnership, 208 n., 221. against trustees, as an estoppel, 237. for negligence, against two, 257. when evidence of notice of non-payment, 258. as proof in action for money paid, 261. notice of suit to make, conclusive as to amount and costs, 265. when evidence of duress, 271. of eviction in action for breach of warranty, 347. damages on breach of warranty on assignment of, 349. roll as evidence of costs, 378. conclusive as to amount even against third per- son, 386. competent to show diligence, 425. against principal debtor admissible against guar- antor, 475. the competency of, under covenants for title, 519. etc. of district court, city of N. Y., 541. presumption of payment of, from lapse of time, ol2. return of execution to repel, 813. general rules as to effect of former, 826. by default or confession former adjudication, 830. reasons of court to show ground of, 833. fraud to rebut former, b34. how proved in actions bv judgment creditors, 736. against joint stock company, 769. impeached in creditor's suit, 741. JUDGMENT CREDITORS, actions by, 736. proof of execution, 736. proof of fraud. 737. indebtedness to plaintiff, 736. the consideration, 738. voluntary se [lenient. 738. indebtedness to other creditors, 738. intention of debtor. 739. fraudulent intent of trrantee. 739. JUDICIAL NOTICE of corporate existence, 19. of charters of public corporations, 21. of special charters of municipal corporations, 21. of seal of municipal corporation, 35. or 770 n. of ordinances of municipal corporations, 40, of by-law? of private corporations, 40. of facts affecting pedigree, SH>. of law of ansbaua ami wife in other states, 164 of law of sister state. 5 Hi. of foreign rate of inteiest. 411. of value of foreign currency, 411. 860 GENERAL INDEX. JUDICIAL NOTICE Continued. . of day a of grace, holiday s, etc., 433. of notarial certificate, 428. course of mail*, 430, 433, 462. of course of insurance business, 480. of rate of commissions oil advances, 794. of usage of trade, 486. of cliurch to keep a record, 30 n. of character of beverage, 778. JUDICIAL SALE, 700. JOINDER of members of voluntary associations, 15. of joint contractors, etc., 136. JOINT ACCOUNT evidence that parties acted on. 3ir>. JOINT DEBTORS, proof of joint liability of, 187. request, to sustain action for money lent, 242. promise by, against others to revive barred claim, 252. demand on, before payment, 265. effect of release of one, 817. payment by obligation of, 806. former adjudication against one, 8^0. JOINT LIABILITY, actions affecting parties in a, 186. proof of, where some defendants are absent or have defaulted, 187. preliminary question as to connection to admit declarations, 191. admissions and declarations of persons not parties to action on, 187. of parties having, 183. of joint promisees. 190. notice to one of two joint obligors, 190. declarations of conspirators or confederates, 190. on face of contract dispensing with allegation or proof of partnership, 20(i. for loan, 241 n. receipt of payment of, in action for money paid, 261. on commercial paper, 399. of successive indorsers, 415. variance as to, 504, etc. JOINT MAKER, irregular indorser presumed to be, 439 n. want of consideration for, 442. JOINT OBLIGORS, admissions and declarations of, 188. JOINT O \VNER, power of one to borrow for all, 242. JOINT PARTIES, authority to indorse for each other, 415. JOINT PROMISEES, admissions and declara- tions of, 11)0. JOINT STOCK COMPANY defined, 16. liability of stockholders, etc., 768. foreign, a corporation, not partnership, 16. when rules applicable to partnership and those to corporations, apply to, 16. JOINT TENANTS, agency to render effectual notice to one of two, 190. JOINTLY seized, acts of persons, 353. JURISDICTION, general principles as to, 544 n. by recitals in letters of administration, 57. impeachment of letters of administration for want of, 57. of discharge in bankruptcy for want of, 830. of discharge in insolvency, 820. object of inquiry as to domicile, to ascertain, 103. impeachment of surrogate's, 111. want of, to Impeach process, 197. judgment void for want of, 199. acts of public officer within his, 199. process as evidence of, 202. want of, in judgment, 539. of justices, how proved, 540. judgment of sister state presumption in favor of, 544. former adjudication of court of exclusive, 829. want of, in rebuttal of former adjudication. 834. JUSTICES' JUDGMENTS, 540. in New York, 540. of sister states, 549. JUSTIFICATION, public officer to plead strictly 801. proof of official character in, 201 of levy, C31. by tax collector, 633. of trespass to real property, 038. of assault, 650. of libel and slander, 670. of false imprisonment. K>7. KKY, Mirtviuler of, to show delivery, 819. KINDNESS of testator to donee to show intent, 141. KNOWLEDGE, incomplete, to rebut ratifica- tion, 43. of officers, agents, inhabitants or voters of mu- nicipal corporation, 45 n. declarations and admissions of executor and administrator, to prove, 59. of death of person, cross-examination to ascer- tain, 72. of family to sustain escheat, 86. to admit declarations as to pedieree. 92. of general reputation in family, '.!. of contents of will, when presumed from due execution, 113. of testator of description of a person, 141 n. to identify charitable society, 111. of admissions, etc., of one in joint business by the others, to show authority, 190. by public officer of acts of deputy or subordi- nate, 198. of married woman of application of materials or work to her separate estate, 184. to show ratification, 185. of statement as to partnership, to render hear- say admissible, 210. of one being dormant partner, 210. of others to show ratification of act of one part- ner, 217. of one dealing with one partner after dissolution, of power of liquidation in another, 218. by partner of matter within scope of business, as notice, 219. of want of partner's authority to act, 222. of misapplication of firm funds to discharge private debts of partner, 222. of dissolution of partnership, 224. want of, by partner to rebut presumption from entries, 230. of trust in cesttii qve trust, 233. of trustee to dispense with notice and demand, 234. in question of mistake, 289. of witness as to value, 310. as to market value, 310, 312. to waive discrepancy in size and weights of packages, 315. presumption of as to articles and quality, 344. of purpose for which thing was ordered, 345. by buyer, of defect, 349. of another person, how proved, 360. of signature, 393. presumed from similar transactions, 399. burden of proof in case of waiver, 435, 436. of facts in insurance application, 479. of agent, when not chargeable to principal, 481. of attorney, when notice to client, 733. how far pfesumed, 493. circumstances, evidence of, 493. of carriers' usase, 577. proved by testimony of party, 620. of state of title presumed, 705. or putting on inquiry, 716. prior, of invention. 763. of violation of ordinance, 772. of facts constituting statute liability, 772. of the law, how presumed, 772. 790. of yiolatior-.fi of statute, 778, 782. of infancy, 778. of seller of liquor, 778. of intoxicating quality of medicine, 782. of use of premises, 779. of illegality of contract, 790. burden as to facts peculiarly within, 771. presumed to continue, 783. of cause for fo. feiture, 783. GENERAL INDEX. 861 LABELS, Inscription on, 774, 777. LABOR, action for compensation, 357. LACHES in omitting demand or notice, '^35. in presenting bank check, 454. LOCUS in quo., 036. LAND, presumption of death from absence, 75. bequest of land to pass a mortgage. 140. when husband entitled to rents and profits of wife's, 176. parol, to prove agency for purchase of, 252 n. contribution for payment of tax, 254. deficiency of, to sustain fraud, 729. ejectment for, 691. LANDLORD, right to draw profits doeg not make partner of, 211 n. LANDLORD AND TENANT, action on lease, 525, etc,. for use and occupation, 351. ejectment between, 706. LANGUAGE, interpretation of, in will, 132. of testator to show usages of speech, 150. of instrument, parol to show, 294. usage of, in a trade, 297. parol, to show usages of, 297. testimony of experts as to technical language, 757. LAW of other state or nation, how proved. 22, 85. "LAY DAYS," 518. LEASES, actions on, 522, etc. allegation of, 523. conditional delivery of, how proved, 584. how varied by parol, 355, 524. in action for use and occupation, 351. in case of tenant in common, 353. implied covenants in, 519, 526. covenants for repairs in, 532. authority of parties to recover on, 525. usage or custom to explain, 525. how construed when silent or ambiguous, 526. ambiguous designation in, 527. date and term of, how proved, 527. amount of rent, how proved, 527. possession not essential, 528. estoppel of tenant, 528. adverse title, 530. forfeiture of, how waived, 530. demand of rent, 530. assignment of, how proved, 631. surrender of, 532. destruction of premises, 532. apportionment of rent, 533. payment of rent, 533, 809. eviction, 534. waste, how proved, 534. raises presumption of ownership, 779. LEGACY. extrinsic evidence as to bequest of stock, 147. as to ademption of, 148. as to chargine, 149. LEGAL PROCESS against bailee, 554. false imprisonment, 657. in action by or against officer, 605-613. date of, 6RS., 8J. LEGATEES and devisees, actions by and against, 71. erasure of name of, and substitution of another, 134. extrinsic aid in identifying, 136. claims of, on testator to show intent, 136. when a trustee, 146. same sumgiven twice to same, 148. declarations and admissions of, showing fraud or undue influence, 159, 160. collusiveness of judgment in suit by, 160. judgment agninst executor, etc., in action to charge, N>I. LEGISLATURE, recognition of corporate exist- ence by, 20. journal of, to prove voto for statute, 21. LEGITIMACY of offspring, strengthening pre- sumption of marriage. 79. second marriage before death of former part- ner, 83. burden of proof, and presumptions as to, 88. rebuttal of presumption of, 88. Adulterous intercourse of mother, 89. LEGITIMACY Continued. parents, testimony and declarations as to, 89. dying declarations as to, 90 n. proved by hearsay as to facts of pedigree, 91. decree of probate court as to, 100 LETTERS to deceased, testimony explaining,70/i. to testator to show mental soundness, 115. of testator to identify charitable society, 141. as hearsay of facts of family history, 94. received within seven years, production of, 78 . to rebut presumption of death, 7I>. to relatives of absentee when insufficient in. quiry, 76. expressing intent never to return, 107 n. of wife to show causes of separation. 179. mailing of, to public officer as notice, 196. to sustain inference of receipt, 291. presumed delivered in ordinary course, 433. (ButfffSOS.) stating writer is interested in firm and asking credit, 209 n. by partner in his own name, 218 n. notice of dissolution of partnership by, 224. as res gestcK to show payments instead of loans. 245 n. of agent to sub-agent, 253. accompanying receipt. 807. containing demand on joint debtor, primariness of, 265. letter-press copies, 266, 290. duplicate originals, 266. to show title to fund, 275. agreement of sale made by, 289. part of connected correspondence, 291, 677. as evidence of market value, 309. knowledge of witness as to value based on. 310. of negotiation of sale, to show warranty, 345. enclosing contract, part of res gel. to sell, presumption as to, 287. of physician, attorney or other person rendering services, 358. in case of trespass, 638. of innkeeper, 560. evidence of business. 777. evidence of ownership, 591. from patentee, 7'i- 1 . estoppel from denying validity of patent, 756. T.K 'KNSK LAW, actions for violation of, 774. LIEN of bailee, 660. on thing con verted, 625. incclianic'ti, actions on, 767. vendor's, foreclosure, 719. LIFE, presumption of, 73, 75, 77. English rule as to, 77. grounds for, 77 n. 8G2 GENERAL INDEX. LIFE Continued. American rule as to, 77. grounds for, 78 n. probable duration, 734. LIGHT, obstruction of, 642. L1KKNKSS, how proved, 377. not evidence of identity, 895. LIMB, exhibiting to jury, 599. LIMITATIONS, statute of, distinguished from presumption from lapse of time, 812. pleading, 8'^. burden of proof, 822. conditional new promise, 824. acknowledgment of debt, 824. part payment, 824. indorsement of payments, 825. revival of .debt by admissions and declarations of co-representative. 59. by payment by co-representative, 59 n. as to payment in action for money paid, 267. as bar to action for wages, 375. on insurance note?, 456. of account, on account stated, 464. judgment of sister state, 549. of action under Civil Damage Law, 782. LIQUIDATED damage* or penalty, 511. LIUUOKS, action for selling, 774. LIS MOTA, declarations made in view of con- troversy, 95. LIS PENDENS, as notice, 717. LOAN, by corporation, when presumed valid, 33 n. power of " financial agent ' to negotiate, 43. property given an advancement on, 152. delivery of money or chattels by parent, 154. parol to show, an advancement, 154. from wife to husband, 173. proof of, in accounting between partners, 226. to sustain action for money lent, 239. delivery of money to show, 240, 243. when presumed payment, not, 243. direct testimony of, 240. to third person to sustain action for money lent, 240. to which of several, credit was given, 240. request to characterize transactions as, 241. authority of agent to make request for, 241. due bills competent, of, 244. check evidence of payment, not of, 243, 245. receipt in action for money lent, to show, 244. plaintiff's accounts, to show, 245. when recovered without regard to special agree- ment, 246. effect of holding collateral security for, 246. joint adventure under allegation of, 279 n. reservation on, as compensation, not usury, 794. when presumed from discounting note, 795. LOG-BOOK, competency of, in insurance, 500. LOSS of corporate books, 51. of will, secondary evidence of, 126. to firm from partner's neglect, 228. of paper by bankers, 558. as ground of assessing insurance notes, 455. insured against, 488, etc. presumed from ship's absence, unheard from, 499. by carrier, 569. of thing bailed, 556. of profits in infringement of trade-mark case, 753. of service, by seduction, 682. LOST INSTRUMENT, action on, 510. title deed and secondary evidence, 709. judgment, 538. negotiable paper, 389, 390. certificate of notary, 428. execution, 702. LUNACY, inquisition of, 119, 734. LUNATIC, testimony against committee of, 62, transaction with, by objecting party, 69. impeaching contract, 119, 734. MAGISTRATE, proof of marriage before, by eye witness, 80. de facto and with color of title.'process by, 202. authority shown by parol ; 784. MAIL, ordinary course of, m case of an account stated, 462. MAIL Continued. payment, by, 803. MAILING letter, 291. notice of protest, 433. presumed from ordinary course, 433. MALICIOUS PROSECUTION, actions for, 652, etc. MALICE, by public officer, 199. in trespass, 630. in cage of nuisance, 642. in case of libel, 666. of agent in committing tort, 38. in malicious prosecution, 654, 655. MANUFACTURE, distinguished from sale, 357. statute of frauds, as to agree'ments for, 292 n. designated by a particular brand, 804. MANUFACTURER, implied warranty of. 342. MAPS and charts, 699. admissibility of, 321. referred to in a deed, 697. MARGINE, figures on commercial paper, 410. memorandum on notice of protest, 426 n. MARK, signature by, 398. on patented article, omitted, 765. MARINE insurance, 496. etc. MARINER'S protest, 500. MARKET VALUE, of goods, how proved, 307. between vendor and purchaser, 728. price current as proof of, 309. MARRIAGE, burden of proof and presumptions of, 79. how proved in civil actions, 163. action for necessaries, 178. in action for enticing away, 681. in crim. con., 684. in divorce, 743. direct evidence of, 79. testimony of parents to, 89. husband or wife as witnesses to prove, 165. proof by certificate or registry, 80. indirect evidence of, 81 . cohabitation and repute, 81. cohabitation and declarations, 82. after meretricious intercourse, 82. second, during absence, 83. presumption of death to sustain second, 73. rebutting evidence of, 84. foreign law of, how proved, 85. in question of title by collateral descent, 85. presumption of legitimacy, additional to that of, 88. illegitimacy of child born before, 88 n. entries of, in family Bible or other book, 93. proved by general reputation, 94. by hearsay as to facts of pedigree, 91. competency of certificate, 99. by registries of, authorized by law, 97. registries of, not authorized by law. 98. identity of oerson named in register of, 101. foreign certificate of, 97 n. decree of probate court as to, 100 n. to render declarations admissible as hearsay, 91. of alien woman, 102. constructive revocation of will by, 125. declarations of husband as to property of wife, 173. actions for breach of promise of, 676, etc. MARRIED WOMAN, liability of to equitable es- toppel, 167. effect of judgments against, 168. evidence of title of, 169. declarations as to title of, 170. title to property obtained in business by, 171. evidence of conveyance by, 174. acknowledgment by, 174. Eowers of attorney by, 174 n. npeaching conveyance of, 175. evidence of separate business of, 175. actions by, 180. evidence of contract in actions by, 180, 182. two elements in proof of contract of, 181. action of, for tort, 181. actions against, 181. pleading m action against, 181 . separate estate, English rule as to charging, 182. New York rule as to charging, 183. GENERAL INDEX. 863 MAKTIIEI) WOMAN- Continued. direct benefit to, 184. action for necessaries against, 185. action for fraud against, 185. action on negotiable paper by, 399. sen-ices on the property of, 358. presumption of husband's agency, 399. MARSHALS, action by and against, 605, etc. against receiptor, 605. for conversion, 605. for trespass, 605. justifying levy, 631. MASTER AND SERVANT, actions for wrongful dismissal or refusal to receive, 384. liability of warehouse-keeper, 562. admissions and declarations of servants admis- sible against masters, 588. liability of master to servant, 593. authority to assault, 646. assault by servant. 646. action by, for enticing away servant, 681. sale by servant, 777. sales of liquor, 774. MATERIALS proved, under complaint for ser- vices, 357. value of, 3(>s. MEANING of libelous words, 664. ]\1 KAN'S of support, knowledge of, 780. MEASUREM ENT of work done, 365. MEASURER'S return, 566. MEASURES, usage to show peculiar, 304. MECHANIC'S LIEN, actions on, 767. foreclosure of, as defense to action for price of goods, K36. MEDICAL treatment, the effect of, 600. MEDICINE, action for selling intoxicating bever- MELANCHO'LIA, 502 n. MEMBERSHIP of voluntary associations, 15. of corporation, 768. MEMORANDUM, distinction between corporate minutes and individual diary, 47 n. accounts and entries of corporation as, 52. indicating death in official record, 72 n. of physician to prove date of birth, 87. entries of births, deaths and marriages in, 93. of facts of family history, 96. of clergyman, 98. of testator, 146 n. indicating a gift to be an advancement, 154. referred to in will as showing an advancement, 156. of "sworn before me," when not proof of oath of public officer, 194. check given as, 244, 454. of payment, when used in testifying, 258. of terms of sale, when not primary, 288. of sale under statute of frauds, 292. of sale, parol to explain, 293. unsigned, 862-375. indicatin" sale, parol to explain, 313. entries to snow to whom credit was given, 302. use to refresh memory of witness, 523. as auxiliary to oral testimony, 319. admissible as part of res gestce, 319, 326. by a third person in course of business, 322. of deceased person in course of duty, 429. refreshing memory, 320, 322. shop-books and other accounts of party as, 322. of defendant's admission made by plaintiff or his agent, 327. of auction sale, 327. of sale by broker, authority to make, 328. of contract for services, 363. of person who made demand, etc., of negotiable paper, 425. in margin of notice of protest, 426 n. to refresh memory as to protest, 429. of statement of account. 461. of contract not signed, 523. as evidence in case of negligence, 587. diagrams, maps, etc., 699. characterixiiii,' possession of land, 711. found on premised illegally need, 784. of payer to show payment, 808. of contract between vendor and purchaser, 726. MEMORY, memoranda refreshing, 320. MENTAL feelings, 502. suffering, 599. impairment by negligence, 599. MERCHANT, letters of, as evidence of market value, 309. price current issued by, as proof of market value, 309. MERGER of cause of action in former recovery. 827. by judgment against one joint debtor, 830. of contract between vendor and purchaser, 728. of rent in sealed instrument, 534. MESNE profits, ejectment, 714. MESSENGER, memoranda of, 429. MIND, effect of probate, as to testator's sound- ness of, 110. MINISTERS, privileged communications to, 501. MINUTE-BOOK of corporation when competent, 46, when may be resorted to, 47. for and against whom, competent, 48. primariness of, 48. of one since deceased, how proved, 49 n. MISCONDUCT of receiver to render him per- sonally liable, 232. MISDESCRIPTION, declarations of testator to explain, 143 n. in catalogue a,t -auction, 328. MISNOMER of corporation in abatement, 31. in appointment of public officer, 194. in will, 142. in deed, 695. MISREPRESENTATIONS of testator as to his will, 131. to rebut presumption of intent of husband to make provision for wife, 171. as ground of action, 6)4, etc. in action between vendor and purchaser, 729. MISTAKE, assignment of, cause of action for, 3. to rebut ratification, 43. of secretary of corporation in not making en- try, 52. of draftsman of will, as to name, 141 n. in description of property, 143 of scrivener in drawing will, 113. in writing name in will, 139 and n. in omitting provision of will, 129. in wills, correction of. 134 and n., 135 . when not to be shown, or corrected, 135, 136. of testator as to existence of a fund, explained, 147. In statement of an advance, 149. consideration of deed obtained by, 171. to impeach conveyance by wife, 175. in joining husband with wife, 182 n. securities surrendered by, 243 n. payment for assessment or taxes by, 260 n. in paying neighbor's tax, as consideration for promise to repay, 251 n. in law, by agent to prevent recovery of princi- pal, 253 n. in compromise and composition of debt, 816. in paying money for another, reimbursement, 254 ,i. recovering back money paid under, 268. promise to repay money paid uuder mistake, 270. in paying money on forged or counterfeit pa- per, 270. insufficient to sustain allegation of fraud, 272. demand in case of, ~si n. in written instrument, parol to show, 294 n., 295. in entry as to whom credit was intended to be given, 303. in MdrMdBg goods sold, 316. in name of buyer at minion sale, 328. in date of contract, 409. 41i'. iu commercial paper, must be pleaded, 410. in footing up account, 463. of law, in award, 469. does not dispense with statute of frauds, 472. in insurance polie\ as a ground fur reformation, 512. 864 GENERAL INDEX. MISTAKE ConfimrtfJ. in counterpart or duplicates, 524. of grantor in executing deed, 788. in Hiking usury, 7SM. iiiacfoimr slated. Sl.">. to avoid release, 818. conversation on sale of land to show, 729. MODELS in patent case*, 757, 760. MODIFICATION of contract for services, 370. of sale, 314. subsequent to written contract, 413. of sealed agreement, 510. of a:rreement as to negotiable paper, 447. MONEY, allegation of collection of, on process, 198. burden on plaintiff suing to recover value of bad, 270. referred to in will as showing advancement, 156. delivery of, presumed in payment of debt, 799. possession of, by creditor or agent, to show payment, 810. MONEY GIVEN to a eon to purchase a farm, when an advancement, 153. to married woman, as showing her title, 170. by husband to wife, declarations in reference to, 172. MONEY LENT, grounds of action for, 239. delivery of, 239. direct testimony to loan, 240. delivery to third person, 240. to which of several credit was given, 240. request, characterizing transaction as loan, 241. authority of agent to make request for loan, 241. parties to joint adventure, 242. request of joint debtor, 242. written evidence in actions for, 243. delivery of, without writing, presumed payment of obligation, 213. due bills as proof. 243. defendant's check in favor of plaintiff, 244. defendant's checks on plaintiff, 244. defendant's receipt to show loan, 244. plaintiff's check, 244. plaintiff's account book, 245. character in which parties dealt,- 246. connected und collateral agreements, 246. MONEY PAID, grounds of action for, 249. debt under seal or by judgment, 3. to defendant's use, 249. previous request, or previous promise to reim- burse, 250. subsequent promise to reimburse, 251. parol to vary the writing, 251. agent's action against principal, 252. obligation to pay what defendant ought to have paid, 253. surety's action against principal or co-surety, 254. implied promise to indemnify, 256. action between parties to negotiable paper for, 2o7. proof of payment by oral evidence, 258. by producing defendant's order in favor of third person, 259. by plaintiff's check or accounts, 259. by payee's receipt or surrender of evidence of debt, 260. judgment against plaintiff, 261. medium of payment, 263. amount, 2i>4. source of the fund paid, 264. object and application of the payment, 265. demand and notice, 265. defenses to action for, 266. under mistake, etc., payment in actions for, 268. subsequent promise to repay, 270. forged or counterfeit paper, 270. under duress, 270. under fraud, 271. where consideration fails, 272. MONEY RECEIVED, grounds of action, 273. pleadings in action for, 273. by defendant to plaintiff's use, 273. plaintiff's title to the fund, 274. MONEY RECEIVED Cfmtinued. the receipt of the money by defendant, 275. ' by agent of defendant, 978. the medium and amount of payment, 277. action by depositor a'_'aiii-t Mok, 277. bank's action for overdraft. 279. action by principal against his agent, 279. demand and notice in action for, 281. defendant's evidence, 281. by sheriff, 60S. MONTH, meaning of, 366. MOM'MKNTS, bounding lands, 700. MORTGAGE, parol assignment of, 2. admissions of assignor against assignee, 14 payment to assignor, 802. authority of officer to cancel, 35. when bequest of land will pass. 146. to disprove joint interest or liability, 188 n. in name of one partner, 222 n. title by chattel mortgage, 625. deed proved a, by parol, 722. foreclosure of, 719. alteration of, 721. evidence of consideration, 742. fraudulent intent of mortgagee, to impeach, 739. MORTGAGOR AND MORTGAGEE, ejectment between, 707. MOTIVE of contract distinguished from consid- eration, 441 n. in actions for assault. 648. MUNICIPAL CORPORATIONS, illegality of, in proceedings to enforce ordinances, 20. acceptance of charter by, 25. judicial notice of charters, 21. of seal, 35. of ordinances, 40. ordinance, how proved, 40, 770. ordinances violation of, as evidence of negli- gence, 590. adoption of by-law of, 39 n. usage and coursu of business of officer or agent, 42. notice to officers or agents of, 45 n. knowledge of officers, agents, inhabitants, or voters of, 45 n. competency of books of, 47. primariness of corporate record or copy, 48 n. parol to vary minutes of, 51. recovery of money wrongfully borrowed of officer, 274 n. municipal bonds, actions on, 451. liability for unsafe condition of property, 590. cannot alter rules of evidence, 7V1. MUTUAL ACCOUNT in case of account stated, 459. MUTUAL PROMISE of marriage, actions for ' breach of, 676. MUTILATED record, 536. (And see ALTERA- TIONS.) NAME of incorporation, suing by, as evidence of user, 27. when identity presumed from, 56. proved by hearsay as pedigree, 91. by general reputation, 94. identity of person with, 101. in will, explanation of use of, by testator, 133. erasure of and substitution of another, 134. of relationship, 137. of corporation, 138. when not controlling, 139. identity of person designated inexactly in will, 139, 140. latent ambiguity in, 140. fraudulent insertion of, when it creates a trust, 147. of child, purchase in, 152. of members of firm, proof of, 207. nominal partner receiving only compensation for, 208. partnership as authority for business done in firm, 214. credit to partnership from transaction being in firm, ill5. signing contract self " & Co.," 215. charging firm, on contract in partner's individ- ual, 2*6. GENERAL INDEX. 8G5 NAME Continued. private dealing by partner In, not within scope of business, 222. change of firm, ns notice of dissolution, 223, 224. on negotiable paper, reimbursement in inverse order of, 257. liability of one permitting nse of his, 300. of buyer nt auction sale, correction of, 328. on sign board, card, etc., 5!)1, 774, 777. NATIONAL BANK. (See BANK.) NATIONALITY, national character and domi- cile, 102. naturalization, 102. NATURAL manifestations of pains, 599. NATURALIZATION, to show national character and domicile, 102. as evidence of change of domicile, 106. NECESSARIES, purchased by wife., 177. action against husband for, 178. how proved, 178. defenses to action for, 178. action against married woman for, 185. against infant, 796. NK< NATIVE evidence, 756. NEGLIGENCE, actions for, 582, etc. witnesses' opinions, 586. notice of defect, 591. request, 591. who is contractor, 592. who is servant, 592. employment of unfit servant, 593. common employment, 592. condition of person or thing injured in actions for, 594. Buffering in actions for, 598. impaired powers, 598. opinions of witnesses, 600. / burden of proof as to contributory, 594. of corporation books to show precautions, 47. of secretary of corporation in not making entry, 52. in filing report of corporation, 770. of husband as to wife's property, 169. to charge partner with assets, 229. impliea promise to indemnify for money paid for, 258. in making mistaken payment, 269. in discovering forgery of check, 278. in taking transfer of negotiable paper, 451. in defense of action for services, 373. of attorney, 378. not proved by ill success, 378. gross negligence, how proved, 557. special contract to exempt, 574. in signing contract, 443. of bailee, 353, 555, 556. of clerk in bank, 558. of carrier, 571. of passenger carrier, 576. of telegraph company, 604. of sheriff, 606. NEGOTIABLE PAPER, actions on, 3S7-186. NEGOTIATIONS adniissable in interpretation of contract, 364. evidence varying terms of writing, 525. NEW PROM IsK lifter infant becomes of age, 796. to rebut accord and satisfaction, S14. to robot dfocturge, 821. to rebut statute of limitations, 823. conditional, S2I. NEWSPAPERS, notice of, as to facts of family history, id. %. publication of notice of dissolution of partner- ship in, 22 J. publication, how proved. 376. presumption that subscriber read advertisement, 450. slip submitted with preliminary proofs, 490 n. competent of raising inference of knowledge, m. price current in, as proof of market value, 309. libel in, 663. NOISE as a nuisance, f>12. NON-ACCESS, knowledge of witness, 743. NO N - 1 ) K 1. 1 V !: I ; V by carrier, 570. of package, 580. 55 NON-NEGOTIABLE NOTES, action on, 457. NON-PAYMENT, when to be alleged and proved, 331. proved by possession of note, 416. of mortgage, 720. NON-USER, when incompetent as to corporate existence, 31. NORTHAMPTON TABLES, 602, 724 n. NOTARIAL CERTIFICATE, 424, etc. NOTARY, diligence of, and inquiry, 432. presumption in favor of certificate and official acts, 425. NOTE. (See BILLS, NOTES and CHECKS.) NOTE OF PROTEST, 425, etc. NOTICE, or.-il and written, 706. under statute, 772. to charge purchaser of lands, 716. to charge purchaser of chose in action, 8. to show knowledge of assignor, 11. to produce paper in hands of assignor, 14. of withdrawal of member from association, 16. of meetings of corporation, 24, 38 n., 39 n. of limits of officers' authority in by laws, 41 n. to corporation, how proved, 45. to officers and agents, 45. to public officer, 196. authentication of corporate record produced on, 49 n. for proof of copies of books of foreign corpora- tion, 50. of contents of official report received and " ac- cepted," 51. to produce books, etc., of corporation, 51. to executors and administrators, 55 n. to parties in interest in probate proceedings, 57. to produce letters of administration or probate of will, 58. of will, to widow, 157. to husband or wife, to bind the other, 167. not to sell to wife, effect of, 178. admission of service of, by one of two owners, 187 n. to one of two joint obligors, 190. of dissolution of firm, 207. burden of proving. 222. mode of proving, 223. evidence under general issne, without, 201. of lack of authority to do business for firm, 214. of dissent of partner, 217. of matter wittoin scope of partnership business, 219. to partner after dissolution, 220. of scope of limited partnership business, 221. of title of firm to premises mortgaged in name of one partner, 222 n. of withdrawal of dormant partner, 222, 223. to trustee before bringing suit, 234. by trustee to ceatul one trust for leave to com- promise claim, 235. of infirmity of negotiable paper. 449. to transferee of negotiable paper, 450. to charge indorscr, etc. ,430. of non-payment of check, 244. 804. to produce negotiable paper, 390. of not being answerable for work on ship. 2!52 n. of non-payment, in action for money paid. -j.x. of bringing of suit, to one primarily liable, 2f>2 ;'. before payment, to sustain action for money paid, 2"65. in action for money received, 281. by telegram, primariness of company's tran- script to show, 291. to agent, evidence against principal, 783. by principal, of repudiation of aueut's act, 263. of termination of atrency. 300. 333. on bill-head restricting claims for deficiencies, 805. option in contract, exercised by parol, 314. to terminate contract, 384. to produce, when action is, 377. to produce, to admit parol of indorsements of payment*. 809. excuse f..r omission, not provable under aliegar lion of notice. 12:5. ! 5. may be denied generally by witness, 431. in writing, proved by parol, 432, 706. 866 GENERAL INDEX. NOTICE Continued. extrinsic evidence to supply imperfection, 432. it mil necessary, Uccd not be proved, though alleged. 467. to insurance agent, 480, etc. of loss in insurance, 4!H). to quit, under lease, 627, 706. pf action, without service, 547. to restrict currier's contract, 574. of carrier's delivery, 577. to carrier, from appearance of articles, 579. of defect, in actions for negligence, 5^1. of dangerous character of animals, 645. of trust, in securiiies, 628. of suretyship, to creditor, 819. to abate nuisance. <>I3. for cause for forfeiture, 783. of defence in patent case, 762-765. NOTORIETY, as evidence oi intemperate habit, 778. as evidence of liquor trade, 779. NOVELTY of invention, 756. NUISANCE, actions for, 640, etc. former adjudication, 643. damages in actions for, 643. notice and request to abate, 643. notice to municipal officer, 45 n. "NULTIEL CORPORATION," proof of corpo- rate existence under, 18. OATH as condition of holding lands, 103. of public oflicer, how proved, 194. competency of public officer's uot having taken, 197. euppletory, of books of firm, 205. and bond of receiver, when presumed, 231 n. of arbitrator, 466. OBJECTION to testimony against executor or administrator, when to be made, 65. (See also OFFEB and TRIAL.) OBSTRUCTION of highways, 773. OCCUPATION of real property, action for, 351. In action for use and occupation, 353. declarations as to, 711. OFFER of evidence, how made, 13. against executor or administrator, what to show, 66 n. of reward, 383. to perform, 313. to deliver goods, 314. in action for non-acceptance, 337. of buyer to pay, when excused, 338. (See also TRIAL.) OFFICE, title to In quo warranto, 749. OFFICERS, delegated powers of, 32. appointment of, 51. ratification of acts of, under allegation of au- thority, 32. ratification by, how proved, 43. acts of, in course of business, 32. allegation of contract made by president and directors, 32 n. impeachment of power of, 82. presumption of authority or ratification of parol contract of, 34. testimony of, to show authority, 43. authority of, when not presumed, 34. implied In title of, 48. implied scope of, 41. to make sale out of course of business, 35. to cancel mortgage, without consideration, 35. of minutes to show, 48. when called for by subpoena duces tecurn, 51. when by notice to produce, 51. of corporation, appointment of, 40. general presumptions as to conduct, 83. authority of, 40. to execute power of attorney, 35. to draw bills, 41 n. power to direct suit brought, 43, 43. to convey, 42. action for compensation, 880. when corporation liable for wrongs by, 88. knowledge of, not binding on municipal cor- poration, 45 n. books of municipal corporations as to election OFFICERS Continued. notice to, when to corporation, 45. corporate record, for or against, 4~. as to quality of article, 304, 310, 347. as to value, 310, 598. of life estate, 7:M. of attorney's services, 378. of uervices of broker. 380. in actions between vendor and purchaser, 728. as to hire of chattels, 3.">(>. ' to construction of contract as to performance, 371. on value of advertising, 376. as to likeness, 377. as to compensation of writer, 377. as to profit of voyage, 384. as to competency of crew, 496. as to seaworthiness, 498. as to rating of ship, 498. as to handwriting, 393, 396, etc. in signature, 501. to will, 113. as to seal, 506. as to damages, 511. as to waiver, 4!H. in insurance case, 493. in actions for negligence, 586, 600. as to waste, 534. as to care and diligence, 561. as to injury, 594. as to cause of injnry, 571. as to injury to passenger, 580. as to solvency, 617. as to title, 727. as to sanity, 734. as to mental soundness of testator, 116. by expert, 116. to prove inadequate consideration, 738. of public officer as to violation of law, 772 n. as to injury by assault, 649. as to adultery, 745. respecting age of person, 87. not proof of necessaries, 178. OPPORTUNITY, circumstantial evidence of adul- tery, 744. ORAL admissions of assignor, 12. of incorporation, 28. of payee, 258. of debtor to show part payment, 824. of married woman, 182. to convey, parol declarations to show, 158. varying mortgage, 721. agreement on matter as to which writing is si- lent, 205. for accounting and settlement by partners, 230. appointment of public officer, 194. assurance to buyer as a warranty, 341. authority of officer or agent of corporation, 43. consent of husband to wife's conveyance, 174. contracts by agents of corporation, 34. (See also STATUTE OP FRAUDS.) declarations not amounting to estoppel, 13. of deceased rebutted by counter written decla- rations, 70 . as hearsay as to facts of pedigree, 90. of facts of family history, primariuess of, 96. of declarations of family, 93. no part of testamentary acts, 129. of ancestor as to title, 158, 711. defeasance of debt, 722. demand, when competent, 266. evidence as to mode of payment, 9 n. of title of assignee in bankruptcy, 9. to impeach assignee's title, 8. to vary assignments, 7. to vary schedules in assignment, 6. not to vary unsealed contract of corporation, 84. of authority of agent of corporation to execute deed. :i of presentation to and approval by corporate board of bond or deed, 37. where corporate contract is ambiguous as to party, 3?. of acts of private corporations, 39. ORAL Continued. of existence and membership of voluntary as- sociations, 15. of filing of certificate of incorporation, 25, of special contract completed, ;>. to vary written contract for services, 364-368. as to purchase money, 385. of promise to pay incnmbrances, 385, to explain promise to third person to pay plain- tiff, 38K. to show whether name was signature or not, 391. to vary proof of contents of lost instrument, 391. ' to show real party to negotiable paper, 402. as to consideration of negotiable paper, 441. as varying negotiable paper, 409. to vary indorsement, 414. to explain irregular indorsement, 437. to explain acceptance, 419. to vary place of demand, 424. to qualify certificate of protest, 426. to vary bank check, 453. to explain non-negotiable paper, 457. to explain insurance notes, 456. to explain preliminary agreement for insur- ance, 477. to explain application or policy, 479, etc. to explain policy, 499, etc. to vary policy, 483. to show real party in interest in insurance policy, 487. to enow consideration for writing, 405. to explain consideration, 741. of notice given in writing, 432. to explain written wniver, 436. to show alteration, 407. to show intended medium of payment, 410. to show place of payment in written contract, 411. to explain submission and award, 466-170. to vary award, 468. of guaranty, 471. to show consideration of guaranty, 473. to vary'guaranty, 473. etc. to eke out contract under Statute of Frauds, 471. that others should sign, 507. to vary sealed instrument, 508. to show mistake of fraud, 512. to vary charter party, 517. to vary lease, 524, etc. to explain ambiguous designation in lease, 527. to prove date and term of lease, 527. to explain writing competent against stranger, 484. to vary writing in actions against bailees, etc., 553. to vary writing in actions against agents, etc., 553. to explain instructions to carrier, 565. to vary bill of lading or receipt, 573. money receipt, 807. to vary passage ticket, 581. of misrepresentation, collateral to a writing, 619. to explain deed, 6%, etc. to vary deed, 691, etc. of lost deed, 709. to vary land patent, 705. to explain record of former adjudication. S.H3. to connect new promise with original debt. 824. as to release, 818. to vary mortgage. fii">. of contract between vendor and purchaser, 725. to explain contract between vendor and pur- cuaser. 7','ti. not admissible to contradict recognizances, 784. in respect to ballot. 749. to qualify patent, etc., 756, etc. of plaintiff's title in action for specific per- formance, 731. 868 GENERAL INDEX. ORAL Continued. partly performed, specific performance of, 730. of contract in action for s peciflc performance, 730. (See also) PUIMARINESS. representations us an estoppel from proving usury, 702. ORDEK, in favor of third person, as proof of payment, 259. assumption of, originally given by a third per- son, 802. when proof of agreement of sale. 291. for delivery of goods, when evidence of deliv- ery, 315. for goods in action for non-delivery, 337. of court, and dfl pursuant to it, 701. as former adjudication. 831. ORDINANCE, illegality of, in proceedings , to enforce, 20. violation of, as evidence of negligence, 590. of municipal corporations, how proved, 770. ORIGINAL INVENTOR, patentee the, 757. OUSTER in ejectment, 714. OVERSEERS of poor, 774. OVERVALUATION in insurance, 494. OWNER, executors and administrators, not, 54. declarations of former. (See ADMISSIONS AND DECLARATIONS.) OWNERSHIP, how proved, 590. general repute as to, in proof of title, 159 n. proved by leasing, 779. when joint, equivalent to partnership, 210. presumptive evidence of possession, 425. of thing insured, 487. acts of, by buyer, to show delivery, 819. of thing causing injury, 590. of thing injured by negligence, 594. of thing converted, 623. of real property in trespass, 634. of plaintiff in replevin, 688. of wife's property, 780. of patent, 762. PACKAGE, what is, 579. actions for loss of, 577, etc. PAIN, how proved, 599, 678. PARAMOUNT title, 521. PARAMOUR as a witness, 747. , PARENT AND CHILD, emancipation of child, 64 n. living together as, proof of issue, 87. declaration of one against the other, 589. testimony and declarations of parents as to legitimacy of child, 89. citizenship of parent, 102. domicile of parent, that of minor child, 105. as to ademption of legacy to child, 148. presumption as to advancement to child, 150. deed from parent to child, as an advancement, 152. purchase by parent in name of child, to show an advancement, 152. money given to son to purchase a farm, when an advancement, 153. implied promise to pay for maintenance, 379. services between, 359. action for wages, 382. action for enticing away child from service, 681. PART PAYMENT, as an admission of demand and notice, 434. in full, 807. to suspend statute of limitations, 824. PARTIAL FAILURE admissible under allega- tion of total, 442, PARTIES, contract of corporation ambiguous as to, 37. interested, against estate of deceased, 61. excluded, against executors and administrators, 62. when " party " includes one in interest, 63 n. what persons protected by exclusion of inter- ested, 64. to personal transaction or communication, 68. to identify shop books, 69 n. objecting to transaction with deceased or lunatic, 69. contradiction by, of transactions with 'deceased, 70 n. PARTIES Continued. rule in U. 8. Courts as to exclusion of transac- tions with deceased, 70. a witness of marriage, fcO. right to rebut evidence of other, 132. in joint or common interest or liability, 186. joint liability, 187. admissions a'nd declarations of, 188. declarations of conspirators, 191, non-joinder of co-partners as plaint iff c, 205. non-joinder of partners as, in abatement, 221. to joint adventure, power of one to borrow for all, 242. admissibility of account books of, 245. parol to show suretyship, 254, 818. to explain relation of, 263. to show relation of principal and agent be- tween, 280. to show true party, 509. to show real party to contract, 274. to show real party in interest, 295. shop books and other accounts of, 322. may testify to opinion in his own behalf, 369, 8?7. incapacity of, must be alleged, 440. plaintiff, not real holder or owner, 443, 786. real party in interest in insurance policy, 487. to show real parties in a lease, 353, 525. authority of to recover on lease, 525. identjty of, in actions on judgment, 538, 539. identity of, in deed, 695. may testify to himself, 599. may be examined as to fraud and deceit, 620. as to infringing trade mark, 753. incapacity of, in abatement, 786. who affected by former adjudication, 829. testimony of, in divorce, 747. PARTITION, actions of, 723. PARTNERS, actions by, 203. allegation of partnership, 203. proof of partnership, 204. parol evidence to vary contract, 204. Buppletory oath of, to entries in firm books, 205. declaration by one thnt he is, 187. declarations of, in favor of firm, 205. defendant's evidence, 205. matter in abatement, 205. actions against, 206. allegation of partnership, 206. best and secondary evidence, 207. signing his name " & Co.," to contract, 207 n, holding out to the public as, 208. representations to particular creditor as, 209. admissions and declarations to show, 209. dormant and secret, 210. evidence in respect to date of charge, 212. assumption of debts by incoming, 213. variance as to number of, 213. presumption of, authority of, 214. ratification of act of, 217. deceit or fraud by one, 217. books by, within scope of business, 217. admissions and declarations of, 218. rules peculiar to surviving partners, 224. actions between, 226. on account stated, 460. order of profs, 227. books, &c., of partnership as evidence, 229. voluntary settlement by, 230. promise by, after dissolution insufficient against others, 252. payment by. presumed with firm money, 264. accounting for money received after withdrawal of one, 280. entries made by, how proved, 324, 325. receipt of payment by one, 800. payment by obligation of, 806. note to, by creditor after dissolution, 818. knowledge of one, evidence against another, 772. each other's agents for purpose of admissions, 189 n. (See also PARTNERSHIP.) PARTNERSHIP, partner as witness, 64 n. action by partners, allegation of, 203. proof of, 204. GENERAL INDEX. 869 PARTNERSHIP- Continued. parol to vary contract sued on, 204. firu books as evidence in favor of firm, 205. declarations of partners, 205. defendant's evidence, 205. matter in abatement, 20">. actions against partners, 206. allegation of, in, 2UG. proof of, 206. best and secondary evidence, 207. pai'ol to prove existence of, before articles of, 20?. indirect evidence of, 207. holding out to the public as evidence of, 208. admissions and declarations to prove, 209. hearsay, 210. defendants' evidence to disprove, 220. matter in abatement, 221. actions by survivor, 224. actions against survivor, 225. actions against representatives of deceased part- ner, 225. actions between partners, 226. allegation andooiden of proof of, 226. order of proof in, 227. firm or individual transactions, 228. joint purchase or ownership when equivalent to, 210. dormant and secret partners, 210. community of profits ; the common law rule, 211. " the English rule, 212. cases in which participation in profits no proof of, 211 ;t, 212 n. evidence in respect to date, 212. assumption of debts by incoming partner, 213. variance as to number of partners, 213. presumption of partner's authority, 214. express authority, 214. scope of business, 214. question to whom credit was given, 215. parol to charge flrm on individual signature, 216. when bound by scaled instrument as a simple contract, 216. ratification of act of partner, 217. deceit or fraud by one partner, 217. torts by one partner within scope of business, 217. admissions and declarations of partners, 218. acts, admissions, etc., after dissolution, 218. notice, tender and demand, 219. proving limited, 220. known want of authority, 222. transactions in the interest of one partner, 222. burden of proving dissolution and notice, 222. mode of proving dissolution, 223. rules peculiar to surviving partners, 224 title to real property, 228. charging member with assets. 229. evidence to credit member with payments or share, 229. books, etc., as evidence, 229. voluntary settlement by partners, 230. when to be shown in action for money received, 275. signature, how proved, 400. presumptions as to consideration of negotiable paper, 400. proved by production of flrm contract, 401. fraud by, 615. (See also PAUTNEUS.) PASS for passenger, 578. PASS BOOK, competency of, 326. us an account, stated. 459. PASSENGER, action for injury to, 577, etc. list, 5TH. PATENT, power of corporation to acquire, 33 n. actions foi- infringement, 755, etc. for lan.1,705. PAYMENT distinguished from " taking up," 449, 430. E leading, 446, 798. urden i>f proof, 446, 798. in case of collateral security, 9. oral evidence to prove, 258. as to agreed mode of, 9 n. res gcthE, 799. PAYMENT- Continued. by crediting in pass-book, 13. by one co-representative to revive debt, 59 n. to or by deceased, 67 /. to ancestor, 69. of insurance of ship, to prove death, 74. of legacy during testator's life, 14!i. acknowledgment of, in deed, not an advance ment, 152. by parent for conveyance to child, to show an advancement, 153. by delivery of money or chattels to child by parent, 154. by husband to wife, 172. wife's admissions of, for her services, 176. to charge separate estaie of wife, 184. partner not agent to remove statute of limita- tions, 189 n. evidence to credit partner with, 229. to establish resulting trust, 238. by delivery of money, 239, 243, 799. of money to use of defendant, 249. intent of, to show to whom credit was givem, 241. by check, 244, 259, 803. by note, etc., of debtor or third person, 804. by obligation of joint debtor, 806. by delivery of property, 264, 806. account books to show, 245. to sustain action for money paid, 250. to sustain promise to reimburse, 251. of another's debt, 252. by mistake, reimbursement for, 254 n. by surety under fixed legal liability, 256. in action for money paid, 258. order in favor of third person, 259. receipt or surrender of evidence of debt to show, 260, 800, etc. medium of, 263, 277, 799. in commercial paper, 410,803, etc. source of the fund paid, 264. object and application of, 265, 811. illegality of, 266. by mistake, what to be proved, 268. under duress, 270. as evidence of receipt of money, 275. to agent, 276, 800. to avoid statute of frauds, 292. memorandum of sale as to rnteof, 293. different from that acknowledged, 295. on account, eflect of as to price of goods, 806. time for, 312. how proved, 409. place of intended payment for commercial pa- per, 4!1. and delivery, when presumed concurrent, 313. stipulation for " cash on bill f lading," 317 n. to satisfy statute of frauds, 319. draft as demand of, 331. as to receipt of negotiable pnper in, 331. of counterclaims proved from defendant's book, 336. readiness to make, 338. by aji-nt to principal, 339. of negotiable paper, warranty of no knowledge of, 310. of compensation for services, 375. of child's wages to child, 3M2. in part, evidence of assent, to alteration. 408. of part as an accord and satisfaction, si i. to take debt out of statute of limiiations, 824. indorsement acknowledging part, 825. indorsement for purposes of, 414. as evidences of, 415. possession of instrument and indorsements to show, 809. presumptions arising from possession of secur- ity, 416 n., 801. by new note, 44(i, b04, of postage, 4.'fci. production of instrument. 446 of insurance prrinhini. isi. of rent in actions on ItNisr, .Vd. of previous installments of rent presumed, 533, 809. of judgment proved by parol, 539. 870 GENERAL INDEX. PAYMENT - Continued. of taxes, 704. &a evidence of obligation or title, 723. of consideration, disproof of, 7KS n. guaranty of, no estoppel from proving usury, 792. assuming, as estoppel from proving usury, 792. of bonus, to show usury, 793. autliority to pay, 800. to rece'ive, from possession of security ,&c., 801. of agtnt to receive, 800. to assignor, 802. to executors, trustees, &c., 802. to sheriff, 802. by mail, 803. of collateral, 806. part as payment in full, 807. presumption of, from subsequent transactions, 809. from lapse of time, 731, 812. circumstantial and corroborative evidence of, 810. application by debtor, 810. by creditor, 811. by the court, 811. receipt to show, 806. may be proved without producing receipt, 742. of price in action for specific performance, 730. admissions, entries and memoranda to show, 808. PEDIGREE, declarations as to facts of, 87. direct testimony to age, when a fact of, 87. relationship by marriage, dissolved by death, 91 n. testimony competent within rule as to, 89. hearsay as to facts of, 90. grounds of receiving and weight of, 90. what within rule of, 90. relationship dissolved by death, 91 n. what connection with family to admit declara- tions as to, 92. registry of facts of, 97. judicial records showing facts of, 100. competency of judgments, and verdicts as to facts of, 100. (See also FAMILY HISTOBT:) PENALTY or liquidated damages, 511. actions for, 770. PENDENCY OF ACTION as notice, 717. as a defense, 786. PERFORM ANCE of contract for services, 370. non-performance and excuse, noi admissible, 511. of charter party, actions for, 518. PERIL, insured againsi, 488, eic. in case of carrier's loss, 5b9. affecting testimony of witness, 598. PERJURY, need not be proved beyond a reason- able doubt, 495, 671. PERSON, identity of, when presumed, 398. injured, condition of, 594. (And see IDENTITY. 1 PERSONAL PROPERTY, actions for trespass to, 629. etc. to recover possession of, 688, etc. PHOTOGRAPHER, as witness to handwriting, 398. PHOTOGRAPHS, as evidence of identity of per- son, 102. of signatures to will, to aid experts, 113. as evidence of handwriting, 3y8. PHYSICAL injury, 598. PHYSICIAN incompetent to prove services to deceased, 69. testimony or account of, as evidence of birth, 87. when competent as to mental capacity of testa- tor, 117 n. to show causes of separation, 179. action for compensation, 358, 382. privileged communications to, 501, 744. testimony to injuries, 600. PLACE in determining market value, 308. of publication of libel, 663. of directing notice of protest, 431. PLACE-HIKE, 562. PLEA of guilty, 746. PLEADING, particular allegation does not nullify general allegation, 374. performance of condition precedent, 423. PLEADING Continued. recital, a sufficient allegation, 514. uncertainty as to ground of action, 559. counterclaim, 835. PLEDGE of negotiable paper, 444, 448 noti held by broker, 558. action against pledgee, 561. POLICY of insurance, action on. 478, etc. POLL LIST, 750. POSSESSION, how proved, 590, 623. of evidence of debt, 5. under ancient will, 128. by parent of property purchased in name of child, 153 n. by donee of money referred to in will, 160. of ancestor, 156, 157. declarations of ancestor in possession, 157, 711. under a will, 159. joint interest in, 159. by husband or wife, 168. 169, 172. change of, between husband and wife. 172. husband's intent to reduce wife's biooerty to, 173, 176. by husband of instrument executed by wife, 182. declaration when admissible from joint, 189. of mortgaged premises by line, 222 n. action for, by surviving partner, Ji25. by receiver without title, fe31. of money by trustees, 235. by buyer as showing acceptance of terms cr sale, 288. proved by acts and declarations, 355. of evidence in action for work on the property, 360. taking possession not admission of perform- ance, 371. of negotiable paper, 389. as proof of delivery, 404. by defendant, of the instrument sued on, 419. presumptive evidence of control, 425. as evidence of payment, 446. title, presumptive! evidence of, 425. as evidence of title, 623, 692. of notice of title, 717. of title to ship, 4S7. of sealed instrument, evidence of delivery, 507. actions on covenants for quiet, 520. not essential in actions on lease, 528. of personal properly in case of trespass, 629. when badge of fraud, 737. of specific personal property, actions to recover, 688, etc. of real property, actions to recover, 691. in actions tor trespass, 635. as evidence of title in replevin, 689. characterized by admissions and declarations, 711. by defendant in ejectment, 714. of security to show authority to receive pay- ment, 801. change of, in action for specific performance, 730. deed void for adverse, 710. adverse, in ejectment, 715. continued, evidence of fraud, 741. of plaintiff, in cases of nuisance, 640. POSSIBILITY of issue extinct, 724 n. POSTAGE, presumed paid. 433. POSTING foreclosure advertisements, 701. of ordinance, 771. of libel, 663. POSTMAN, presumption as to delivery of letters, POSTMARK, of what prima facie evidence, 94, 291. POST OFFICE, placing letter in, as evidence of its receipt. 291. PORTSMOUTH TABLES, 724 n. POWER, evidence as to execution of, 150. of agent by vote or resolution, 41. authority of president of corporation to exe> cute, 35. by married woman, 174 n. to execute deed, 696. not necessary to produce, 478 n. of clerk acting as officer, 43. GENERAL INDEX. 871 POWER Continued. of executor and administrator, how derived, 54. of " financial agent," 43. of husband as agent of wife, 182. of married woman to make contract, 181. to till blank in deed, unacknowledged, 175 n. of municipality to issue bonds, 452. of officers to direct suit brought, 42, 43. impeachment of, 32. of partner to acknowledge debt barred by the statute, 219 n. of president, secretary and cashier to convey, 42. of public officer to sustain private action, 199. tort by partner in exercise of implied, 217. (And nee AUTHORITY.) PRACTICAL CONSTRUCTION of contract, 509. or lease, 526. PREGNANCY, preceding marriage, P9. PRELIMINARY agreement for insurance, 476. proofs in insurance, 489, etc. PREMISES, how identified in actions on lease, 527. in deed, 697-009. destruction of leased, 532. PREMIUM notes to insurance company, 455. PREPONDERANCE of evidence, rule of, in civil cases, 495, 071. PRESCRIPTIVE right must be pleaded, 638. as against nuisance, 643. PRESENTMENT, proved by acceptance, 420. PRESIDENT, of corporation, compensation of, 381. PRESUMPTION, that occupation continued, 353. of continuation of occupation, 353. of continuance of agency, 482. of probable continuance of injury, 600. of continuance of character, 674. of contjnuance of pendency of action, 786. of continuation of adultery, 744. of continuance of corporation, 750. of identity of person, 398. relative to commercial paper, 398, etc. in aid of official acts of notary, 425. of innocence in civil cases, 495, 671. of payment of previous installments, 533. in favor of jurisdiction on judgment of sister state, 544. of discharge of legal duty, 556. of grant of easement. 640. of regularity of official acts, 702. of regularity in tax title, 7(>4. of payment from lapse of time, 812. as to account srated, 815. (See more fully the particular subjects of pre- sumption.) PRIMARINESS, of assignment in writing, 6. in bankruptcy, 9. to purchaser from assignee in bankruptcy, 9. for benefit of creditors, 10. of record of organization of bank, 22. of original Certificate incorporation, 25. of unsealed contract of corporation, 34. of certified copy of resolution authorizing exe- cution of corporate deed, 3(i. of evidence of keeper of record as to non-record of fact. 39. of original book or paper containing by-laws, 40. of statutory record of corporation, 46. of record of corporate proceedings, 47 n., 48, 50. of letters testamentary and of administration, 56. of decree of probate or certified copy of let- ters, 58. of probate of domestic wills. 109. of will a* to lauds and probate as to person- alty, 109 n. of foreign will in question of title, 128. of ancient will, 128. of cohabitation and repute, as evidence of mar- riage, si. of registers as to facts of family history, 99. of officer's certificate of acknowledgment by married woniim, 174. of written appointment of public officer, 194. of decree of divorce, 179. of record of legal proceedings, 558. | PRIMARINESS Continued. of record to prove judgment, 802. of process and record of judgment or decree, 202. of legal process, 554, 606. of execution to show issue and return, 736. of record of former adjudication. 831. of letter containing demand on joint, debtor, 265. of duplicate original letter, 2!;ii. of account of a party offered in his own favor, 322. of book of original entries in party's accounts, 323. of account kept by a party, in his own favor, 325. of copy of notary's certificate, 428. of memorandum of account, 461. of publication, 664. of special statutory proceedings, 701. of receipts, 806. of receipt for property in payment, 799. of writing referred to in agreement to pay, 243. of written agreement to pay money loane'd, 243. of principal's admission that money was prop- erly paid, 800. of bank-book or pass-book, 245. of receipt given by payee, for payment, 261 n. of written contract, 272, 287. of correspondence embodying contract, 292. of letters or telegrams containing agreement of sale. 290. of original message delivered to telegraph company, 290. of company's transcript of telegram to show no- tice to receiver, 291. of municipal ordinance, 770. of passenger list, 578. of articles of partnership, 207, 226. (See also ORAL EVIDKNCE.) primary evidence of tenancy, 352. of negotiable paper, 390. of signature, 393. of pendency of action, 786. PRINCIPAL AND AGENT, actions against agents, 557. etc. (And see AGENT and AGENCY.) PRINCIPAL AND SURETY, defendant a surety, 445, 813. declarations and admissions, 513. PRINT on ballot controlled by writing, 750. PRINTED description of invention, 763. PRIOR knowledge of invention, 703. PRIVILEGE. (See WITNESS.) PRIVILEGED COMMUNICATION, when attor- ney who drew articles of copartnership, privileged, 226 n. in libel. 667, 670. PRIVITY between deceased and disqualified wit- ness, 68. of contract, in action for money received, 275. in case of negligence, r>s:!. in action for use and occupation, 351. effect of former adjudication on parties in, 830. PROBABLE CAUSE in malicious prosecution, 653,655. for seizure and forfeiture, 783. PROBABLE DURATION of life. 002. PROBATE decree, an adjudication, 58 ri. how far conclusive, 110. domestic will proved by producing, 109. to prove foreign will, 128. letters as source of power, 54. of will, when to be produced, 56. notice to produce. :.s. paper imperfectly showing, when competent, 58 n. weight of admission of oxecntor before, 59 n. proceeding, exclusion of interested witness or party, lit ;/. of ancient instrument, 94. decree of, when proof of facts of family his- tory. 100. PROCESS as cause of action by public officer, 197. allegation of collection of money on, 198. neglect of officer to execute, 199. as a protection to a public officer, 201. 872 GENERAL INDEX. PROCESS Contin ued. primary evidence. .Vil. 11 n lawful levy of, (530. in fNe imprisonment, 657. PRODUCTION of special contract In action for services, 862. of negotiable paper sued on, 389. of negotiable instrument on making demand, 4-25. of account stated, 460. PROFITS, participation in, as proof of partner- ship, 210. ail. ail n., 212 n. community of, the common law rule, 211, 211 n., 212 n. the English rule, 212. showing partnership, 220. loan with share in, 2~M. apportioning in final accounts between partners, of continuous partnership enterprise, 229. recovered as money received, 280. mesne, in ejectment, 714. probable profits of voyage, 884. proved without producing account, 384. PROMISE to marry mistress, 82. partner not agent to take out of statute by 189 n. to pay indefinite share, not competent of part- nership, 211 r>. by partu* r after dissolution, 219. to repay money lent, 239. to pay, parol to vary written, 243. to reimburse, 249, 250, 251. to repay what defendant ought rather to have paid, 253. money paid nnder mistake, 270. to indemnif y, parol to prove, 255. implied to indemnify, 25(1. parol, not contradicting legal effect of writing, 251. to pay price of goods, allegation of, 285. to pay current market rates, or fair value, 306. to pay draft as proof of delivery of goods, 315. " to settle," when equivalent to promise to pay, 327. to pay in a contingency, 327. to cure defect, in action for breach of warranty, 346. to a third person to pay plaintiff, 386. of the plaintiff to pay third person, 386. to accept negotiable paper, 420. to pay account stated, 459. (And see NEW PROMISE.) PROMISSORY NOTE, parol assignment of, 2. (See BILLS, NOTES and CHECKS.) PROMOTER of corporation, action for compen- sation, 380. PROMULGATION of ordinance, 771. PROOF, or acknowledgment of deed, etc., 175. 694. PROSKCUT1ON, actions for malicious, 652, etc. how proved, 652. PROSPECTUS of insurance co., 484. PROSTITUTES as witnesses, 747. .PROPERTY, evidence of user, 27. revocation of will by change in testator's, 126. different kinds of, to show intent of testator, 136. intended in will, 143, 144. ambiguity as to which of two parcels, 145. of testator, condition of, 146 n. situation of, 149. condition of, to show intent, 150. transfers of, between husband and wife, 164 n. evidence of husband's title to, 108. management of, by wife, 176. of married woman, direct benefit to charge, 184. given in payment of debt of another, value of, 264. delivery of,1n action for money received, 277. lack of, as proof to whom credit was given, 303. value of, to show price agreed, 305. actions for trespass to personal, 629, etc. actions for trespass to real, 634, etc. payment by delivery of, 806. PROTEST against payment to show duress, 271. statement of drawees' declarations inserted in, 421 n. PROTEST Continued. as evidence, 425. of mariner, 500. PROVISO in statute. 771. PROVOCATION, actions for assault, 650. in libel, 673. PUBLIC OFFICER, actions by and againsL, 193 proof of title of, 193, 196. legal title of, 194. contract of, in official capacity, 194. charging personally, 195. acts oy part of board or body, 195. demand and notice, 196. effect of former judgments on, 196. pleading by suing as, 196. as defendant, 201. cause of action against, 198. de facto, proof of, 201. three rules as to proof by, of being officer de facto, 201 n. process as supporting a cause of action, 197. defendant, process as a protection to, 201. return adduced in his own action, 197. return as evidence against, 199. action by, lor emoluments, 197. actions against, 19ti. plaintiff's pleading in actions against, 198. plaintiff's proof of the otncial character, 198. proof of official character in justification by. 201. presumption of performance of duty by, 198. public action for refusing to serve, 200. liability for services, 361. competent to testify to handwriting, 395. decision of, as former adjudication, 829. (See o&oOppicER; and SHKBIFFS.) PUBLICATION in copyright case, 766. . in foreclosure advertisement, 701. of award, 467. of libel, 662. 6C.3. of notice, knowledge of witness, 376. of summons, etc., 547. proved by sale, 766. PUBLIC USE of invention before patent, 764. PURCHASE by married woman, in question of title, 170. by wife, when evidence of title in husband, 168. liability of husband for, 177. joint, when evidence of partnership, 210. PURCHASE M< >NEY, action to recover, 385, 72. PURCHASER, bona fltte, of land, 715. PURPOSE of an act of trespass, 636. QUALITY, extrinsic evidence to show, 303. element in proof of value, 307. opinions of witness as to, 310. defects in, as defense in action on sale, 335. warranty as to, 343. what assertion of, sufficient for warranty, 340. implied warranty as to, 343. in action for breach of warranty, 346. presumption of knowledge as to, 344. QUANTITY, parol tcrexplain, 304. of property offered in a lot at auction, 328. memoranda refreshing memory as to, 321. defects in, as defense in action on sale, 335. warranty as to, 343. of land. (See VENDOR and PURCHASER.) QUANTUM MERUIT, for use and occupation, 354. for hire of chattels, how proved, 356. for service, how proved, 367. QUIET POSSESSION, actions on covenants for, 520. QUI TAM action, 770, etc. QUO WARRANTO, actions of, 749 RAILROAD COMPANIES, action against, as common carriers, 563, etc. for negligence. (See NEGLIGENCE.) designation of land, 638. dress as indicating a brakeman, 41 n. admissions of conductor, baggage master or station agent, 44. RATIFICATION of acts of officers or agents Tin- der allegation of authority, 32. effect of to show authority, 41. when inferred, 42. GENERAL INDEX. 873 RATIFICATION Continued. of parol contracts of officers or agents of cor- porations, 31. of agent's acts, 560. as proof of authority, 87. when presumed, U!i!i. by corporation or its officers, how proved, 43. of contract by executors and administrators, 55 n. by married/ woman, to charge separate estate. 185. of concession by one partner, to bind another, 207, 208. of unauthorized act done for firm, 214. to render deed of partner good against firm, 216. by partners after dissolution. 219. by cesttd gue trust, of trustee's dealings with es- tate, 236. of previous transactions as proof of agent's au- thority, x.'1-i. to show authority of one joint owner to borrow for all, 212. of act of broker, 329. of signature by admission, 392. of alteration, uot proved by demand, 408. of award, 467. as to bailments, 560. of contract made on Sunday, 791. of usury, not presumed, 794. to prove new promise after infant becomes of age, 79H. of compromise and composition of debt, 816. of release by co-trustee, 817. RATING of ship. 4U8. KEADY AND WILLING, in contract of sale, 337. In action for non-delivery, 338. REAL PARTY IN INTEREST, 1, etc., 786. iucoin potency of declarations of assignor, when not, 12. proof of incorporation of, 20. parol to show, 295. oral evidence to show in sealed instrument, 509. plaintiff, though not so named in the contract, 298. in insurance policy, 487. in charter party, 517. in lease. r,-j:>. REAL PROPERTY, presumption of death from absence, 75. primariuess of probate of domestic will as to, 109. presumptions as to intestacy, 109. primariness of will as to, 10!) //. decree of probate, how far conclusive as to, 110. charging legacies on, 149. condition of, on question of execution of power, 150. advancement by deed of, 152. transactions of husband and wife affecting, 164. conveyed by husband and wife jointly. Kill. management of, by wife, when separate busi- ness, 176. pirtnership in, 211 n. parol to prove partnership in transactions in, 207. title of partnership to, 228. resulting trust in, 238. agency for purchase of, 252 n. implied covenants in contract for sale of, 727. actions for trespass to. 634, eic. possession of in actions for trespass, C35. license to another, 638. not questioned in replevin. 689. actions to recover possession of, 691. REASONABLE delay, 499. doubt, rule of, in civil cases, 495, 671. time, how proved, 8114, 371. for presentment of commercial paper, 421. nscnnd fare, 614. RECEIPTOR, action against, 605. RECEIPT by assignor before tiansfer. 1 1. of third persons, to show separation of wife with allowance, 179. of husband for wife's property, 180. by ageut of new flrui, io n. RECEIPT Continued. of trustees of an express trust, 235. to show loan, 244. primariness of, 258, 806. endors d on order for payment by third person, 259 n. of payee in action for money paid, 260. order for pa\ muut of moiiey, when prirna facie, 272. in action for money received, of the money by defendant. 275. of money by a. copy of, 96. "family rtcord" in Bible, authentication of 90 n. identity of person named In. 101. imperfect, in actions on judgment, 536. in bankruptcy. 9. juuicial notice of usage of church to keep a, 3!) . of filing of certificate of incorporation, i"i. of acts of directors, 41. of corporation, three classes of. 46. of election of corporate officers, ',",<<. of action of corporation, -iti. of corporate proceedings, primariness of, 48. of corporation, authentication oi. (< //. of private corporation, lacking official signature, 50. rough corporate minutes, 50. of |>robate proceedings, 5>8. of ancient instrument, as hearsay of family his- tory, 94. 874 GENERAL INDEX. RECORDS Continued. of judgment of naturalization, 102. of probate of will, as proof of will, 109. of judgment against executor or administrator, 161. of appointment of public officer, when conclu- sive, 201. of order or decree appointing receiver, 232. of United States courts, 549, 550. of former adjudication, primariness of, 831. oral evidence to explain, 833. of deed, 693. of highway, 774. of recognizances, 784. of supervisors, 770. of marriage, statutory provision for, 80. parol to show official character, notwithstand- ing, 198. to vary corporate, 51. peculiarity in competency of statutory, 47 n. primariness of evidence of keeper of, 39. to prove judgment of divorce, 101. RECOUPMENT in action on sale, 335. by counterclaim, 835. RECOVERY, former, as merging cause of action, 827. REDEMPTION, certificate of, 703. of real property, 722. RE-ENTRY on leased premises, 532. REFEREE, report of, not former adjudication, 881. REFORMATION, actions for, 732. grounds of impeachment, 732. of mistake, when necessary, in action on con- tract, 485. of sealed instrument, suit on, 5'2. REFRESHING memory as to handwriting, 395. use of memoranda by witness, 320. REFUSAL, dispensing with tender, 316. to receive, 336, 337. of seller to deliver, 338. to perform in anticipation of the time, 384. to produce evidence, 478. to produce books and papers, 783. of bailee to deliver, 557. as evidence of conversion, 627. to perform contract between vendor and pur- chaser, 728. REGISTER of shareholders, as statutory record, 46. proof of death, by hospital, 73. of b irial, as to time of death, 73. of marriage, kept pursuant to statute, 80. of births, entry in, by physician, as to time of birth, 87. transcript of parish, as proof of family history, 93. of facts of family history authorized by law, 97. not authorized by law, 98. primariness of, as to facts of family history, 99. authorized by sister state or foreign nation, 97. when compliance with formalities presumed, 98. of facts of family history, impeachment of, 99. of baptism, marriage, etc., identity of person, 101. of birth and baptism as proof of birth, 86. of hotel, as to intent of residence, 108. of deaths, 501. of vessel, 487, 496. as evidence of title, 624. of deed, 693, 71 1. of weather. 499. REGISTRATION of trade mark, 751, 760. REGULARITY, presumption of, in proceedings of executors and administrators, 55. of issue of municipal, etc., bonds, 452. in proceedings affecting title to land, 700-704. of discharge in bankruptcy, 619. in insolvency, 820. REISSUE of patent. 758. RELATION to testator, to show undue influence, 120. of testator to claimant as evidence of intent, 143. of indorsement back, to agreement, 440. RELATION- Continued. of deed back. (i!M. RELATIONSHIP proved by hearsay as to fact* of peilL'ivp, ]e, 51. REPRESENTATIONS of testator as to his will, 131. of partnership by partners, 209. of agent for benefit of principal, 299. to show warranty on written sale, 344. in insurance, 483. etc. provable under allegation of mistake. 485. as an estoppel from proving usury, 792. REPUTATION to pro\e marriage, 164, 178. of marriage, \vlien sufficient. 81. and cohabitation, 81 ., 83, 85 n. effect of concealment to prevent, 82. originating afier cessation of cohabitation, 82. with meretricious cohabitation. 82. of deati.. before expiration of presumptive time, to sustain second marriage, 83. of marriage, facts negativing piesumptionfrom, 84. of alienage or illegitimacy to sustain escheat, 86. facts of family history by general, 94. beyond family as hearsay of family history, 95. competency of judgment, decree or verdict, as to fact that might be determined by general, 101, 827 /). as to ownership to show title, 159 n. of separation of wife, with an allowance, In ac- tion for necessaries, 179. GENERAL INDEX. 875 REPUTATION Continued. official character by proof of general, 201 n. as to residence of indorser, 432. for negligence, 585. as to solvency, 617. of dangerous animals, 645. disiinguished from character, 674. as evidence of knowledge, 778, 779. of intemperance, 778. as to mental capacity of testator, 119. REQUEST of payment for money to one's uae, 249. to sustain action for money paid, 250. not contradicting legal effect of writing. 251. not presumed from mere payment of debt of another, 252. to pay what defendant ought rather to have paid, 253. of principal, for surety, 255. to pay demand not legally due, 266. as ground of action for price of goods, 285. to render services, 358. in actions for negligence, 591. to abate nuisance, 643. RESEMBLANCE of trade mark, 751. (And see LIKENESS HANDWRITING, etc.) RES GEST.E, 404. admissions and declarations of assignor, 2, 11. of act of officers and agents, 44. of party to show usury, 7!)5. as narrative of past act, 45. of decedent, 60. and conduct of testator at execution of will, 112. as to acts of others, 122. to show revocation of will, 124. as to title, 159 of donor as to advancement, 154. of ancestor in favor of his title, 158. -'-as to title, 727. made during progress of invention, 757. of husband or wife, 166. of wife in course of her service 1 , 177. of wife as to causes of separation, 179. at time of execution and attestation of will, 129 n. directions given by physician of testator, on question of undue influence, 121 n. at time of transfer of property to show intent as to an advancement, 151. repute, cohabitation and declarations, of mar- riage, 82. marriage certificate, 80, 99. of parties jointly liable, 187 n. of subordinate, 199. of joint possessor, 189. of conspirators, 191. of partners, 205. of partner as to scope of business, 214. of drawer of check as to its being for a pay- ment or loan, 2-15 n. as to suretyship, 255. of payee, 259. of person paying money, as to fund from which made, 264. of depositor or payer. 275. of depositor at time of deposit, 278. to show intent as to passing title, 318. of employee of seller to remedy defects, 348. and entries of payment as part of, 799. conduct and acts of buyer on receipt of goods, 319. in tracing source of married woman's title, 170. entries tu show credit to wife, 182. entries in check-book, 241. entries of payments in accounts as, 245. fraud in obtaining credit, 246. information and advice upon which agent acted, letters of agent to sub-agent, 253. letters of agent and entries in accounts, 265. conversation on payment, to show its applica- tion, 265. to show receipt of money. 269. to show necessity of exercise of discretion by agent, 281. RES GEST^E Continued. receipt of payment, 799. letter accompanying receipt, 807. of payment to agent to show good faith, 282. books as, to show to whom credit was given, 302. memoranda as part of, 3, 326. of employment, 360, 375. of hiring servant, 593. discharge of a servant, 384. as to negotiable paper, 417. of the making of negotiable paper, 402. and delivery of negotiable paper, 404. of the indorsement of negotiable paper, 413. of demand of negotiable paper, 424. of demand and refusal, 557. contemporaneous agreements, 412. as to statement of account, 461. in case of guaranty, 474. in case of insurance, 492. of an accident, 588. of injury, 597. in case of personal suffering, 502, 600. of medical examination, 601. of loss of thing bailed, 557, 561. of delay and loss by carrier, 569, etc. the continuing fact of possession, 711. calling for liquor, 774. in actions for assault, 648. RESIDENCE, how proved, 107. when proved by hearsay as pedigree, 91. how proved on questio'u of national character, 102. in question of domicile, 103. long continued as proof of domicile, 104. in new locality necessary to change domicile, 105. at college, when does not change domicile, 106. payment of taxes as showing intent, 108. absence from, to raise presumption of death, 76. of judgment debtor, 736. RESIGNATION of corporate office, 769. RES INTER ALIOS ACTA, 354. in respect to services, 360. RES POND EAT SUPERIOR, 592. RETAINER, how proved, 377. by partner, 548. RETURN in action by public officer, 197. as evidence against officer, 199. of article, in breach of warranty, 348. of process how proved, 600. of execution as evidence, li-24. in action by judgment creditor, 736. REVERSAL of judgment in actions on, 539. (Awl see FORMER ADJUDICATION.) REVERSIONER, presumption of death from absence, in life estates. 75. REVOCATION of will, modes of, 123. disappearance as evidence of, 124. declarations of testator to show, 124. by subsequent will, 125. constructive, 125. of agency, 333. of promise to third person to pay plaintiff , 386. REWARDS, action for, 383. RIGHT TO CONVEY, actions on covenants of, 520. RISK, insured against. 488, etc. " ROOTS " what are, 485. ROBBERY bv servant, 572. ROUTE of carrier. 507. RULE OK COURT as to value of life estates, 724. RUMOR of existence of partnenhlp, 210. SAILOR, presumption of death by absence of, 74. domicile of, 105, 106. SALE, by officer not in course of business, 85. bill of parcels showing joint. 188 n. in action for money received, 2~,(\. of personal property, actions arising on, 884. license to sell. _>:. ordinary sa e by delivery, 287. ezproec agreement, 287. made by letter or telegram, 289. memorandum under statute of frauds, 292. explaining wriiing by parol, 291. proof of usage, 290. 876 GENERAL INDEX. SALE Continued. real party in interest, 298. purchase by defendant's agent, 398. defendant liable as andltcloaea principal, 300. parol to show undisclosed principal, 8iU. defendant liable though acting as agent, 301. assumption of order given by third person, 302. to whom credit was given, Mti. identifying the tiling agreed for, 303. quality ;uid description, 30). "with all fault*," 304. varieties or grades included in generic term, 304. parol to show quantity, 304. parol to show meaning of " barrels," 804. meaning of " more or less " 305. price agreed, 305. value of goods sold, 306. market value, 307. prices" current. 309. opinions of witnesses as to quality and value, 310. time for performance or payment, 312. question as to, being entire, 312. conditions and warranties, 313. of goods, options in, 313. subsequent modifications in contracts of, 314. delivery or offer, 314. delivery through carrier, 315. tender of goods, 816. paying for packing and freight, 316. passing of title, 31K 317. delivery to satisfy the statute of frauds, 318. part payment to satisfy statute of frauds, 319. rules admitting documents otherwise incompe- tent, 319. contemporaneous memoranda, 319. memoranda refreshing memory, 320. made by a third person in the usual course of business, 322. as part of res qeslae, 326. shop books and other accounts of a party in his own favor, 322. of defendant, 336. when using parl of an account admits rest, 326. admissions and promises to pay, 326. at auction, 327, 334. through a broker, 328, 329. when demand necessary before suit, 830. interest, when allowed, 330. non-payment when to be alleged and proved, 331. denial of contract, 332. set-off against plaintiff's agent, 333. denial of agency binding defendant, 333. laintiff an agent for defendant, 333. efendant not the buyer, but agent for another, 334. rescission of, 334. recoupment, 335. defects in title, quantity or quality, 335. deceit as defense in action on, 336. inconsistent remedies, 336. action against buyer, for not accepting, 336. readiness to perform, 337. action against seller 'or non-delivery, 337. orders and acceptance in action for non-delivery, 337. readiness of buyer to perform, 338. object of buying as affecting damages, 338. defendant only an agent, 339. intermediate destruction of thing sold to, ex- cuse delivery, 339. actions and defenses arising on breach of war- ranty, 339. pleading warranty, 339. warranty of things in action, 340. warranty of title, 340. express warranty on sale of goods, 340. agent's authority to warrant, 341. implied warranty on, executed, 342. implied warranty on, partly or wholly execu- tory. 343. by sample, 343. presumption of knowledge as to articles and quality, 344. pl d SALE Continued, parol evidence of warranty on written, 8-14. parol to explain warranty, 315. variances in the contract and breach, 345. breach of warranty, 346. opinions of witness as to qnality of article, 347. admissions and declarations of seller, to show warranty, 348. omission to return the article, on breach of warranty, 348. damages for breach of warranty, 348. disproof of implied warranty, 349. buyer's knowledge of defect, 34'J. seller's good faith, 349. former adjudication in action for breach of warranty, 350. contemporaneous agreement for abatement from price, note, 412. of negotiable paper by indorsement without liability, 414. action for process on execution saks, 606. void as against seller, 625. of lands on execution, 702. of lands on surrogate's order, 703. of land for taxes, 703. of book, evidence of publication, 766. of liquor contrary to law, 774. proved under Civil Damage Law, 776. SAMPLE, sale by, 343. SANITY of testator, 114. SATISFACTION of debt by bequest to creditor, 148. of legacy to child by gift during life, 148. of judgment in actions on, 5-7J. SATISFACTION PIECE, evidence of payment, 539. SCIENTER in action on breach of warranty, 339, 346. in action for deceit, 618. proved by other frauds. 626. proved by repetition, 772. proved by other offences, 775. SCRIVENER, mistake of, in omitting disposition of property in will, 113. testimony of, to mistake in insertion of provi- sion in will, 135 rt. mistake of, in writing name in will;- 139. SCHEDULES of assigned property, 6. in bankruptcy, as admission of debt, 10. to show true owner of claim. 786. SCOPE OF BUSINESS, torts by partner, with- in, 217. (And see AGENT.) SCROLL, as a seal, 428. SEAL, how proved, 506. presumption and proof of affixing, 392. when assignment need not be under, 3. common, when evidence of user, 27. presumption as to corporate, 35. presumption of authority to affix, how rebut- ted, 35. of municipal corporation, judicially noticed. 35. of corporation, how proved, 35. affixing corporate, when void, 35. corporate, prima facie, that deed is that of cor- poration, 36. of corporation, as proof of delivery of deed, 36. affixed by printer of corporate bonds, 36 n. authority of agent, without, 41. of surrogate affixed pending trial, 56 n. contract of public officer under private, 195. authority for partnership business done with- out, 214. power of partner to bind firm by, 216. rejected as surplusage, 216. on notary's certificate, 428. as evidence of consideration, 515. imports consideration in guaranty, 472. in release, 817. on lost instrument, 510. of judgment of sister state, 543. SEALED instrument admissible without allega- tion of seal, 391. Instrument admitting account stated, 460. instruments, actions oil, 504, etc. GENERAL INDEX. 877 SEAMAN, participation in profits in lieu of wa- ges, 212 n. domicilof, 105. SB ARC II for relatives of absentee, 76. for lost will, what necessary, 127. for lost instrument, 510. SEAWORTHINESS, 486. SECTION of statute, and proviso, 771. SECURITY not to pass by will under "mo- neys," 144. purchased by parent in name of child, 152. taken by parent for funds furnished to son, 153. an advancement by provision in will, 155 n. release of, by will as an advancement, 150. making of, lo married woman, 180. surrendered by mistake, 243 n. proof of wortlilessness, 243 n. promise to give, void by Statute of Frauds, 246. effect of holding collateral npon lender's rem- edy, 246. parol to show a transfer was given for, 295. payment by transfer of, 804. 805, 806, 809. possession of, by debtor to show payment, 809. void, to rebut accord and satisfaction, 814. delivery or tender of, in composition with creditors, 816. SEDUCTION, actions for, 681, etc. loss of service, 682. good faith, 682. character, 682. SEIZIN, ancestor's, when necessary, 156. actions on covenants of, 520. SERVANTS of corporation, authority of, 41. labor as by-laws, when competent against, 48 n. exemption of proceeds of husband's wife's, 168. participation in profits by, 211 n., 212 n. notice to, of dissolution of partnership, 224. of carrier, delivery of goods, 315. authority of, to sell, not to warrant, 341. thority of innkeeper's. 560. aracter of, inferred from appearance, 580. negligent person, a, 591. who is, in actions for negligence, 592. employment of unfit, 593. intemperance, how proved, 779. knowledge of, evidence against master, 772. actions for assault by, 646. in house of prostitution as witness, 747. SERVICES of wife, admission as to husband's consent, 176, 177. actions for compensation, 357. of process to sustain judgment, 546. to show commencement of action, 822. loss of by seduction, (W2. SET-OFF, mistake as to, 269. against plaintiff's agent, 333. agreement to set-off against note, 412. dutingaished from omission from account, 463. under general allegation of payment, 799. when not barred by former adjudication, 834. counter-claim as to, 835. SETTLEMENT, voluntary, of insolvent debtor, 788. SEVERAL LIABILITY on commercial paper, 809. on contracts or for tort, 186. SEXUAL INTERCOURSE, how proved, 743-748. SHERIFF, return of, 197, 200, 200 n, receipt of, in action for money paid, 261 n. action against for advertising, 376. actions by and against, 605. action against receiptor of, 605. action for conversion, 605. action of, for trespass, 605. justifying levy, 031. deed, etc., of, 7.' n. SHIP'S REGISTER as evidence of title, 624. "SHIPYARD/' what is, 484. SHOP BOOKS, pany competent to identify, 69 n. to show to whom credit was given, 302. entry in, when prima facie of price and value, 306. of a party offered in his own favor, 322. of defendant, 336. of mechanics, tradesmen and physicians, 372. of newspaper printer, 376. SHORT-HAND, interpretation of will written in, 132. SIGNAL SERVICE, registry, 499. SIGNATURE, rules as to proof of, 391, etc. effect of words of agency attached to, 37. of oflicer to corporate minutes, 49. corporate minutes, lacking official, 50. of officer certifying marriage certificate, 98 n. of subscribing witness to a will, 112. of wife for husband, 175. of contract by partner, self " & Co.," 215. parol, to charge firm on individual, 21fi. for incidental purpose, not primary, of loan, 243. as evidence of suretyship, i"iJ. of drawer proved by acceptance. 420. drawee's knowledge of drawer's payee's and in- dorser's, 270. to memoranda made in usual course, 322. of account stated, not conclusive, 463. of policy, 477. misplaced, 504. by parties not named, 507. of record, 537. SIGNBOARDS, 774, 777. evidence of ownership, 591. SILENCE, as election to accept devise, 157. of wife, caused by husband's influence, 106. of wife, when not an estoppel, 167. of husband to_ show title in wife. 169. of those in joint business to show authority for statements of one, I'.'O. as ratification of act of one partner, 217. as admission of payment by check., 259. as assent to conditions on which money is de- livered, 272. as ratification of agent's act, 299. when not to imply warranty, 342. an admission of correctness, 461. not necessarily assent, 477. not necessarily a waiver, 490. may amount to waiver, 510. SISTER STATES, actions on judgments of, 541. "SKINS," what are, 485. SLANDER, actions for, 059, etc. of title, 668. SLIP, insurance slip, 478. SOLDIER, domicile of, 105, 106. SOLVENCY, mode of proof. 616, etc. of corporation, accounts, and business entries in issue as to, 52. or wealth of debtor, as to payment, 810. Sol'NDNKss OK MIND. ..TT.) SPECIAL contract, \\hen must be proved in ac- tion for services. 361. damages, alii u r ing and admitting, 649, 669. SPECIAI.TIKS. actions on, BOi, . SPECIKICATIONS for patents. 757. SPECIFIC PERFORMANCE of oral contract partly performed, 730. contract to sustain action f. suppression of evidence- in action for. 729. plaintiff's title and performance in action for, 731. SPOLIATION of subsequent will by party claim. ing under i-arlu r. STATE, title o!. t,> land-. of the art in patent case, 759, 765. ST\TK<;KANT. ;<>.-.. STATUTE, evidence of, 770. authenticity and validity of, 21. 873 GENERAL INDEX. STATUTE Con/tint, ,!. of sister Staff, how proved, 22. former adjudication on construction of, 828. aiilhorily to maintain nnisanrc, 644. statutory conditions of contract, 506. violation of, us evidence of negligence, 589. wills compared to, as to admission of parol to explain. 131 n. STATUTE ACTION, cogency of proof, 7T5. STATUTE OF FRAUDS, unsealed contracts of corporations under. 31. trust manifested and proved by writing, 233. promise to give security for loan void by, Ss46. promise to indemnify not within, 255. parol to show real party to contract, 274 n. real party in interest, when to recover, notwith- standing, 298. requisite memorandum of sale nnder, 292. not applicable to agreements for production or manufacture, 292 . not satisfied by oral evidence, 295. undisclosed principal in contract required to be in writing by, 301. contract void under, good as proposition of price, 305. modification of contract within, 314. delivery to satisfy. 318. part payment to satisfy, 319. compliance with, in auction sales, 327. effect of, on rescission of sale, 335. in action for use and occupation, 352. application in action for wages, etc., 363. when available under a general denial, 374. as to agreement for board and lodging, 379. over writing guaranty above indorsement, 440 n. as to guaranties, etc., 471, etc. rule as to pleading, 522. in case of breach of promise, 678. as to oral evidence of transfer of title, 698. to impeach contract, 789. contract between vendor and purchaser, 725. (See also FRAUD.) STATUTE OP LIMITATIONS distinguished from presumption of payment from, lapse of time, 812. pleading, 822. burden of proof, 822. new promise to rebut, 823. conditiona' new promise, 824. acknowledgment of debt, 824. as to payment, 267. part payment, 824. indorsement of payments, 825. decedent's declarations as to debt barred by, 155 n. partner not agent to remove, 189 n. power of partner after dissolution to make new contract and to acknowledge debt barred by, 219. STATUTORY TITLE, ejectment, 700. STEP PARENT and step child, services between, 359. STOCK, strict proof of incorporation, on, 19. action on a subscription for, as proof of cor- porate existence, 27 n. owner of, when estopped from questioning corporate character, 29. subscription books for, as statutory records, 46. rejecting false description of, in will, 145. bequest of, specific, 147. husband's collection of interest or dividends on wife's, 176. burden on one appearing on stock-book as holder of, 232. proof in stock-broker's suit for deficiency on re- sale, 252 n. notes to insurance company, 455. STOCKHOLDER, how proved, 768. liability of. 7