UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A DIGEST OF THE LAW OF EVIDENCE BY THE LATE SIR JAMES FITZTAMES STEPHEN, Bart., K.C.S.I., D.C.L. ONE OF THE JUDGES OF THE HIGH COURT OF JUSTICE From the Fifth Edition (1899) of Sir Herbert Stephen, Bart., of the Inner Tem- ple, Barrister-at-Law, Clerk of Assize for the Northern Circuit, and Harry Lushington Stephen, of the Inner Temple, Esquire, Barrister-at-Law. WITH BOTH GENERAL AMERICAN NOTES AND NOTES ESPECIALLY ADAPTED TO THE STATES OF NEW JERSEY, MARYLAND AND PENNSYLVANIA BY GEORGE E. BEERS or thb new haven bar; of the faculty of the YALE law school; author of thi revision of Baldwin's Connecticut digest, and the editions of Stephen's digest for new york, ohio, Connecticut, illinois, michigan, etc. ASSISTED BY ARTHUR L. CORBIN, B. A., LL. B. OF THE FACULTY OF THE VALE LAW SCHOOL HARTFORD, CONN. DISSELL PUBLISHING COMPANY 1904 Entered, according to Act of Congress, in the year 1904, Bv GEORGE E. I'.EERS, In the Office of the Librarian of Congress, at Washington. J.P.I YON' rr-"fA.sv nom ndem A11AXY. K. T. AMERICAN PREFACE The present work is an attempt to adapt the English edition of Stephen's Digest to the needs of American lawyers generally, and the members of the profession in Pennsylvania, New Jersey and Maryland in particular. The fact that the profession has welcomed the previous editions of the work prepared by the editor of this edition leads him to hope that the present work may be found use- ful by those for whom it is intended. The text of the English edition is here preserved intact, the American notes being arranged in two sets, those gen- eral, for all the States, and those local, for the members of the bar of the three States already mentioned. It is hoped that the book in this form may serve as a hand-book for court and office and a text for the student. The book is intended as a manual for ready reference and not as an extensive treatise. The arrangement adopted will enable the judge or counsel to find readily the English rule of Stephen on any given point, the trend of text-book author- ity, a few leading cases from his own State and from other States, and concrete illustrations from decided cases. The editor wishes to express his appreciation of the laborious and efficient services of his colleague in the un- AMERICAN PREFACE. dertaking, Mr. Arthur L. Corbin, without whose assistance the preparation of the work would have been impossible. The local notes are largely from his pen. G. E. B. 42 Church St., New Haven, Conn., August 17, 1904. PREFACE TO THE FIFTH EDITION In preparing the present edition of this work we have attempted to follow as closely as possible the principles on which it was originally written twenty-five years ago. "We have had to deal with the two new Acts of importance — the Prevention of Cruelty to Children Act, 1894, and the Criminal Evidence Act, 1898. It is not possible to incorporate the provisions of the former Act, relating to the evidence of children too young to be sworn, with the corresponding parts of the Criminal Law Amendment Act, 1885 ; and the result is that Article 123a has to take the form of a confused exception to the general rule, which, in fact, correctly represents the present state of the law with which it deals. The Criminal Evidence Act, 1898, is, from a draftsman's point of view, a more satis- factory measure, but for practical purposes it is necessary to treat that also as an exception to a rule which has been abolished. We hav3 incorporated in this edition a few new cases, of which the most important is R. v. Lillyman, [1896], 2 Q. B. 167. Our view of the effect of this case has neces- sitated a long note (Note V., and cf. pp. 11, 12), which we hope may meet with the assent of the profession generally. All writers of law books depend largely upon one another, and as this Digest was designed to consist of the PREFACE TO FIFTH EDITION. most succinct statement of principles possible, we are per- haps more than usually indebted to other authors and edi- tors. "We have spared no pains in taking the fullest advantage of the labours of Mr. Pitt-Lewis, in his last edi- tion of ' Taylor on Evidence,' and of those of Mr. Phipson in the second edition of* his most useful work. We are also under a special obligation to Mr. William Wills. He has most generously allowed us to appropriate bodily the Table published by him at the end of his ' Lectures on the Law of Evidence,' and we have accordingly reprinted it with a few slight alterations. [As it refers exclusively to- English statutory law it is not reprinted in this edition.] Only those who have themselves tried to prepare such a table can realize how great is the labour involved in its construction; and, after having begun this task, and dis- covered that we could not improve upon Mr. Wills's work, we are only too glad to take advantage of his kindness and republish his Table, instead of constructing a new one of which his must necessarily have been the foundation. The total bulk of this work has been increased from 228 to 271 pages since the last edition. As this is a consider- able growth in so small a book, it may be well to state that the increase in the text is five pages, in the notes five pages, and in the index nine pages. Mr. Wills's Table takes up twenty-four pages. H. S. H. L. S. June 25, 1899. 4, Paper Buildings, Temple. CONTENTS Introduction xiii-xxxi List of English Abbreviations .... xxxiii-xxxv PART I. RELEVANCY. Chapter I. — Preliminary. Art. 1. Definition of Terms Pages 3-12 Chapter II. — Of Facts in issue and relevant to the issue. Art. 2. Facts in issue and facts relevant to the issue may be proved — 3. Relevancy of facts forming part of the same trans- action as the facts in issue — 4. Acts of conspirators — 5. Title — • 6. Customs — 7. Motive, preparation, subsequent conduct, explan- atory statements — 8. Statements accompanying acts, complaints, statements in presence of a person — 9. Facts necessary to ex- plain or introduce relevant facts 13-64 Chapter III. — Occurrences similar to but unconnected with the Facts in issue, irrelevant except in certain cases. Art. 10. Similar but unconnected facts — 11. Acts showing inten- tion, good faith, etc. — 12. Facts showing system — 13. Existence of course of business when deemed to be relevant - - • 65-93 Chapter IV. — Hearsay irrelevant except in certain cases. Art. 14. Hearsay and the contents of documents irrelevant - 94-100 Section 1. — Hearsay when relevant. Art. 15. Admission defined — 16. Who may make admissions on behalf of others, and when — 17. Admissions by agents and per- sons jointly interested with parties — 18. Admission by stran- gers — 19. Admission by person referred to by party — 20. Admis- vii CONTENTS. sions made without prejudice — 21. Confessions defined — 22. Con- fession caused by inducement, threat, or promise, when irrelevant in Criminal Proceeding — 23. Confessions made upon oath, etc. — 24. Confession made upon a promise of secrecy — 25. State- ments by deceased persons when deemed to be relevant — 26. Dy- ing declaration as to cause of death — 27. Declarations made in the course of business or professional duty — 28. Declarations against interest — 29. Declarations by testators as to contents of will — 30. Declarations as to public and general rights — 31. Dec- larations as to pedigree — 32. Evidence given in former proceed- ings when relevant 101-198 Section ii. — Statements in Books, Documents, and Records, when relevant. Art. 33. Recitals of public facts in statutes and proclamations — 34. Relevancy of entry in public record made in performance of duty — 35. Relevancy of statements in works of history, maps, charts, and plans — 36. Entries in bankers' books — 37. Bankers not compellable to produce their books — 38. Judge's powers as to bankers' books — 39. "Judgment" — 40. All judgments con- clusive proof of their legal effect — 41. Judgments conclusive as between parties and privies of facts forming ground of judg- ment — 42. Statements in judgments irrelevant as between stran- gers, except in Admiralty Cases — 43. Effect of judgment not pleaded as an estoppel — 44. Judgments generally deemed to be ir- relevant as between strangers — 45. Judgments conclusive in favour of Judge — 46. Fraud, collusion, or want of jurisdiction may be proved — 47. Foreign judgments 199-255 Chapter V. — Opinions, when relevant and when not. Art. 48. Opinion generally irrelevant — 49. Opinions of experts on points of science or art — 50. Facts bearing upon opinions of experts — 51. Opinion as to handwriting, when deemed to be rele- vant — 52. Comparison of handwritings — 53. Opinion as to exist- ence of marriage, when relevant — 54. Grounds of opinion, when deemed to be relevant 256-300 Chapter VI. — Character, when deemed to be relevant AND WHEN NOT. Art. 55. Character generally irrelevant — 56. Evidence of character in criminal cases — 57. Character as affecting damages - 301-313 CONTENTS. PART H. ON PROOF. Chapter VII. — Facts proved otherwise than by Evidence — Judicial Notice. Art. 58. Of what facts the Court takes judicial notice — 59. As to proof of such facts — 60. Evidence need not be given of facts ad- mitted - - - 314-334 Chapter VIII. — Of Oral Evidence. Art. 61. Proof of facts by oral evidence — 62. Oral evidence must be direct 335-342 Chapter IX. — Of Documentary Evidence — Primary and Secondary, and Attested Documents. Art. 63. Proof of contents of documents — 64. Primary evidence — 65. Proof of documents by primary evidence — 66. Proof of exe- cution of document required by law to be attested — 67. Cases in which attesting witness need not be called — 68. Proof when attesting witness denies the execution — 69. Proof of document not required by law to be attested — 70. Secondary evidence — 71. Cases in which secondary evidence relating to documents may be given — 72. Rules as to notice to produce - 343-383 Chapter X. — Proof of Public Documents. Art. 73. Proof of public documents — 74. Production of document itself — 75. Examined copies — 76. General records of the realm — 77. Exemplifications — 78. Copies equivalent to exemplifications — 79. Certified copies — 80. Documents admissible throughout the Queen's dominions — 81. Queen's printers' copies — 82. Proof of Irish statutes — 83. Proclamations, Orders in Council, etc. — 84. Foreign and colonial acts of state, judgments, etc. — 84a. Answers of Secretary of State as to foreign jurisdiction - - - 384-409 CONTENTS. Chapter XI. — Presumptions as to Documents. Abt. 85. Presumption as to date of a document — 86. Presumption as to stamp of a document — 87. Presumption as to sealing and delivery of deeds — 88. Presumption as to documents thirty years old — 89. Presumption as to alterations - 410-424 Chapter XII. — Of the Exclusion of Oral bt Documentary Evi- dence, and of the Modification and Interpretation of Docu- mentary by Oral Evidence. Art. 90. Evidence of terms of contracts, grants, and other disposi- tions of property reduced to a documentary form — 91. What evi- dence may be given for the interpretation of documents — 92. Cases to which articles 90 and 91 do not apply - - - 425-459 CONTENTS. PAUT HI. PRODUCTION AND EFFECT OF EVIDENCE. Chapter XIII. — Burden of Pboof. Art. 93. He who affirms must prove — 94. Presumption of innocence — 95. On whom the general burden of proof lies — 96. Burden of proof as to particular fact — 97. Burden of proving fact to be proved to make evidence admissible — 97a. Burden of proof when parties stand in a fiduciary relation 460-^492 Chapter XIV. — On Presumptions and Estoppels. Art. 98. Presumption of legitimacy — 99. Presumption of death from seven years' absence — 100. Presumption of lost grant — 101. Presumption of regularity and of deeds to complete title — 102. Es- toppel by conduct — 103. Estoppel of tenant and licensee — 104. Estoppel of acceptor of bill of exchange — 105. Estoppel of bailee, agent, and licensee 493-519 Chapter XV. — Of the Competency of Witnesses. Art. 106. Who may testify — 107. What witnesses are incompetent — 108. Competency in Criminal Cases — 109. Competency in pro- ceedings relating to adultery — 110. Communications during mar- riage — 111. Judges and advocates privileged as to certain ques- tions — 112. Evidence as to affairs of state — 113. Information as to commission of offences — 114. Competency of jurors — 115. Pro- fessional communications — 116. Confidential communications with legal advisers — 1 17. Clergymen and medical men — 118. Produc- tion of title-deeds of witness not a party 119. Production of documents which another person, having possession, could refuse to produce — 120. Witness not to be compelled to criminate him- self — 121. Corroboration, when required — 121a. Claim on estate of deceased person — 122. Number of witnesses - - - 520-574 CONTENTS. Chapter XVI. — Of Taking Oral Evidence, and of the Exami- nation of Witnesses. Art. 123. Evidence to be upon oath, except in certain cases — 123a. Unsworn evidence of young child — 123b. Unsworn evidence of a barrister — 124. Form of oaths; by whom they may be ad- ministered — 125. How oral evidence may be taken — 126. Exam- ination in chief, cross-examination, and re-examination — 127. To what matters cross-examination and re-examination must be di- rected — 128. Leading questions — 129. Questions lawful in cross- examination — 129a. Judge's discretion as to cross-examination to credit — 130. Exclusion of evidence to contradict answers to questions testing veracity — 131. Statements inconsistent with present testimony may be proved — 132. Cross-examination as to previous statements in writing — 133. Impeaching credit of wit- ness — 134. Offences against women — 135. What matters may be proved in reference to declarations relevant under Articles 25-32 — 136. Refreshing memory — 137. Right of adverse party as to writing used to refresh memory — 138. Giving, as evidence, docu- ment called for and produced on notice — 139. Using, as evidence, a document production of which was refused on notice - 575-640 Chapter XVII. — Of Depositions. Art. 140. Depositions before magistrates — 141. Depositions under 30 & 31 Vict. c. 35, s. 6 — 141a. Depositions under the Foreign Jurisdiction Act, 1890 — 141b. Depositions of children — 142. De- positions under Merchant Shipping Act, 1894 - - • 641-648 Chapter XVIII. — Of Improper Admission and Rejection of Evidence. Art. 143 C49-652 Appendix of Notes 653-714 Index 715-756 INTRODUCTION In the years 1870-71 I drew what afterwards became the Indian Evidence Act (Act 1 of 1872). This act began by repealing (with a few exceptions) the whole of the Law of Evidence then in force in India, and proceeded to re-enact it in the form of a code of 167 sections, which has been in operation in India since Sept. 1872. I am informed that it is generally understood, and has required little judicial commentary or exposition. In the autumn of 1872 Lord Coleridge (then Attorney- General) employed me to draw a similar code for England. I did so in the course of the winter, and we settled it in frequent consultations. It was ready to be introduced early in the Session of 1873. Lord Coleridge made vari- ous attempts to bring it forward, but he could not succeed till the very last day of the Session. He said a few words on the subject on the 5th August, 1873, just before Parlia- ment was prorogued. The Bill was thus never made pub- lic, though I believe it was ordered to be printed. It was drawn on the model of the Indian Evidence Act, and contained a complete system of law upon the subject of evidence. The present work is founded upon this Bill, though it differs from it in various respects. Lord Coleridge's Bill proposed a variety of amendments of the existing law. INTRODUCTION. These are omitted in the present work, which is intended to represent the existing law exactly as it stands. The Bill, of course, was in the ordinary form of an Act of Parliament. In the book I have allowed myself more freedom of expression, though I have spared no pains to make my statements precise and complete. In December, 1875, at the request of the Council of Legal Education, I undertook the duties of Professor of Common Law, at the Inns of Court, and I chose the Law of Evidence for the subject of my first course of lectures. It appeared to me that the draft Bill which I had prepared for Lord Coleridge supplied the materials for such a state- ment of the law as would enable students to obtain a pre- cise and systematic acquaintance with it in a moderate space of time, and without a degree of labour dispropor- tionate to its importance in relation to other branches of the law. ~No such work, so far as I know, exists; for all the existing books on the Law of Evidence are written on the usual model of English law-books, which, as a general rule, aim at being collections more or less complete of all the authorities upon a given subject to which a judge would listen in an argument in court. Such works often become, under the hands of successive editors, the reposi- tories of an extraordinary amount of research, but they seem to me to have the effect of making the attainment by direct study of a real knowledge of the law, or of any branch of it as a whole, almost impossible. The enormous mass of detail and illustration which they contain, and the habit into which their writers naturally fall, of introduc- ing into them everything which has any sort of connec- INTRODUCTION. tion, however remote, with the main subject, make these books useless for purposes of study, though they may increase their utility as works of reference. The enormous size and length of the standard works of reference is a proof of this. They consist of thousands of pages and refer to many thousand cases. When we remember that the Law of Evidence forms only one branch of the Law of Procedure, and that the Substantive Law which regulates rights and duties ought to be treated independently of it, it becomes obvious that if a lawyer is to have anything better than a familiarity with indexes, he must gain his knowledge in some other way than from existing books. No doubt such knowledge is to be gained. Experience gives by degrees, in favourable cases, a comprehensive acquaintance with the principles of the law with which a practitioner is conversant. He gets to see that it is shorter and simpler than it looks, and to understand that the innumerable cases which at first sight appear to constitute the law, are really no more than illustrations of a compara- tively small number of principles; but those who have gained knowledge of this kind have usually no opportunity to impart it to others. Moreover, they acquire it very slowly, and with needless labour themselves, and though knowledge so acquired is often specially vivid and well remembered, it is often fragmentary, and the possession of it not unfrequently renders those who have it sceptical as to the possibility, and even as to the expediency, of pro- ducing anything more systematic and complete. The circumstances already mentioned led me to put into a systematic form such knowledge of the subject as INTRODUCTION. I had acquired. This work is the result. The labour bestowed upon it has, I may say, been in an inverse ratio to its size. My object in it has been to separate the subject of evidence from other branches of the law with which it has commonly been mixed up; to reduce it into a compact systematic form, distributed according to the natural divi- sion of the subject-matter; and to compress into precise definite rules, illustrated by examples, such cases and statutes as properly relate to the subject-matter so limited and arranged. I have attempted, in short, to make a digest of the law, which, if it were thought desirable, might be used in the preparation of a code, and which will, I hope, be useful, not only to professional students, but to every one who takes an intelligent interest in a part of the law of his country bearing directly on every kind of investi- gation into question of fact, as well as on every branch of litigation. The Law of Evidence is composed of two elements, namely, first, an enormous number of cases, almost all of which have been decided in the course of the last 100 or 150 years, and which have already been collected and classified in various ways by a succession of text writers, from Gilbert and Peake to Taylor and Roscoe; secondly, a comparatively small number of Acts of Parliament which have been passed in the course of the last thirty or forty years, and have effected a highly beneficial revolution in the law as it was when it attracted the denunciations of Bentham. Writers on the Law of Evidence usually refer to statutes by the hundred, but the Acts of Parliament INTRODUCTION. which really relate to the subject are but few. A detailed account of this matter will be found at the end of the volume, in Xote XL VIII. The arrangement of this book is the same as that of the Indian Evidence Act, and is based upon the distinction between relevancy and proof, that is, between the question What facts may be proved? and the question How must a fact be proved assuming that proof of it may be given? The neglect of this distinction, which is concealed by the ambiguity of the word evidence (a word which sometimes means testimony and at other times relevancy), has thrown the whole subject into confusion, and has made what is really plain enough appear almost incomprehensible. In my 'Introduction to the Indian Evidence Act' pub- lished in 1872, and in speeches made in the Indian Legis- lative Council, I enter fully upon this matter. It will be sufficient here to notice shortly the principle on which the arrangement of the subject is based, and the manner in which the book has been arranged in consequence. The great bulk of the Law of Evidence consists of nega- tive rules declaring what, as the expression runs, is not evidence. The doctrine that all the facts in issue and relevant to the issue, and no others, may be proved, is the unexpressed principle which forms the centre of and gives unity to all these express negative rules. To me these rules always ap- peared to form a hopeless mass of confusion, which might be remembered by a great effort, but could not be under- stood as a whole, or reduced to a system, until it occurred to me to ask the question, What is this evidence which you INTRODUCTION. tell me hearsay is not? The expression "hearsay is not evidence" seemed to assume that I knew by the light of nature what evidence was, but I perceived at last that that was just what I did not know. I found that I was in the position of a person who, having never seen a cat, is instructed about them in this fashion: "Lions are not cats, nor are tigers nor leopards, though you might be inclined to think they were." Show me a cat to begin with, and I at once understand both what is meant by saying that a lion is not a cat, and why it is possible to call him one. Tell me what evidence is, and I shall be able to understand why you say that this and that class of facts are not evidence. The question, "What is evidence?" gradually disclosed the ambiguity of the word. To describe a matter of fact as "evidence" in the sense of testimony is obviously nonsense. JSTo one wants to be told that hearsay, whatever else it is, is not testimony. What then does the phrase mean? The only possible answer is: It means that the one fact either is or else is not considered by the person using the expres- sion to furnish a premiss or part of a premiss from which the existence of the other is a necessary or probable infer- ence — in other words, that the one fact is or is not relevant to the other. When the inquiry is pushed further, and the nature of relevancy has to be considered in itself, and apart from legal rules about it, we are led to inductive logic, which shows that the judicial evidence is only one case of the general problem of science — namely, inferring the un- known from the known. As far as the logical theory of the matter is concerned, this is an ultimate answer. The logical theory was cleared up by Mr. Mill. Bentham and INTRODUCTION. some other * writers had more or less discussed the con- nection of logic with the rules of evidence. But I am not aware that it occurred to any one before I published my ' Introduction to the Indian Evidence Act ' to point out in detail the very close resemblance which exists between Mr, Mill's theory and the existing state of the law. The law has been worked out by degrees by many generations of judges who perceived more or less distinctly the principle on which it ought to be founded. The rules established by them no doubt treat as relevant some facts which cannot perhaps be said to be so. More frequently they treat as irrelevant facts which are really relevant, but exceptions excepted, all their rules are reducible to the principle that facts in issue or relevant to the issue, and no others, may be proved. The following outline of the contents of this work will show how in arranging it I have applied this principle. All law may be divided into Substantive Law, by which rights, duties, and liabilities are defined, and the Law of Procedure, by which the Substantive Law is applied to particular cases. The Law of Evidence is that part of the Law of Proce- dure which, with a view to ascertain individual rights and liabilities in particular cases, decides : I. What facts may, and what may not be proven in such cases; i See, e. g. that able and interesting book 'An Essay on Circum- stantial Evidence,' by the late Mr. Wills, father of Mr. Justice Wills. Chief Baron Gilbert's work on the Law of Evidence is founded ou Locke's ' Essay,' much as my work is founded on Mill's ' Logic.' INTRODUCTION. II. What sort of evidence must be given of a fact which may be proved; III. By whom and in what manner the evidence must be produced by which any fact is to be proved. I. The facts which may be proved are facts in issue, or facts relevant to the issue. Facts in issue are those facts upon the existence of which the right or liability to be ascertained in the proceeding depends. Facts relevant to the issue are facts from the existence of which inferences as to the existence of the facts in issue may be drawn. A fact is relevant to another fact when the existence of the one can be shown to be the cause or one of the causes, or the effect or one of the effects, of the existence of the other, or when the existence of the one, either alone or together with other facts, renders the existence of the other highly probable, or improbable, according to the common course of events. * Four classes of facts, which in common life would usually be regarded as falling within this definition of relevancy, are excluded from it by the Law of Evidence except in certain cases : 1. Facts similar to, but not specially connected with each other. (Res inter alios actaz.) 2. The fact that a person not called as a witness has asserted the existence of any fact. (Hearsay.) 3. The fact that any person is of opinion that a fact exists. (Opinion.) * See Note I. INTRODUCTION. 4. The fact that a person's character is such as to render conduct imputed to him probable or improbable. (Char- acter.) To each of those four exclusive rules there are, however, important exceptions, which are defined by the Law of Evidence. II. As to the manner in which a fact in issue or relevant fact must be proved. Some facts need not be proved at all, because the Court will take judicial notice of them, if they are relevant to the issue. Every fact which requires proof must be proved either by oral or by documentary evidence. Every fact, except (speaking generally) the contents of a document, must be proved by oral evidence. Oral evi- dence must in every case be direct, that is to say, it must consist of an assertion by the person who gives it that he directly perceived the fact to the existence of which he testifies. Documentary evidence is either primary or secondary. Primary evidence is the document itself produced in court for inspection. Secondary evidence varies according to the nature of the document. In the case of private documents a copy of the document, or an oral account of its contents, is secondary evidence. In the case of some public documents, examined or certified copies, or exemplifications, must or may be produced in the absence of the documents themselves. Whenever any public or private transaction has been reduced to a documentary form, the document in which it INTRODUCTION. is recorded becomes exclusive evidence of that transaction, and its contents cannot, except in certain cases expressly defined, be varied by oral evidence, though secondary evidence may be given of the contents of the document. III. As to the person by whom, and the manner in which the proof of a particular fact must be made. When a fact is to be proved, evidence must be given of it by the person upon whom the burden of proving it is imposed, either by the nature of the issue or by any legal presumption, unless the fact is one which the party i& estopped from proving by his own representations, or by his conduct, or by his relation to the opposite party. The witnesses by whom a fact is to be proved must be* competent. With very few exceptions, every one is now a competent witness in all cases. Competent witnesses, however, are not in all cases compelled or even permitted to testify. The evidence must be given upon oath, or in certain excepted cases without oath. The witnesses must be first examined in chief, then cross-examined, and then re-exam- ined. Their credit may be tested in certain ways, and the answers which they give to questions affecting their credit may be contradicted in certain cases and not in others. This brief statement will show what I regard as consti- tuting the Law of Evidence properly so called. My view of it excludes many things which are often regarded as form- ing part of it. The principal subjects thus omitted are as follows: — I regard the question, What may be proved under par- ticular issues? (which many writers treat as part of the Law INTRODUCTION. of Evidence) as belonging partly to the subject of pleading and partly to each of the different branches into which the Substantive Law may be divided. A is indicted for murder, and pleads ISTot Guilty. This plea puts in issue, amongst other things, the presence of any state of mind describable as malice aforethought, and all matters of justification or extenuation. Starkie and Roscoe treat these subjects at full length, as supplying answers to the question, What can be proved under an issue of Not Guilty on an indictment for murder? Mr. Taylor does not go so far as this; but a great part of his book is based upon a similar principle of classification. Thus chapters i. and ii. of Part II. are rather a treatise on pleading than a treatise on evidence. Again, I have dealt very shortly with the whole subject of presumptions. My reason is that they also appear to me to belong to different branches of the Substantive Law, and to be unintelligible, except in connection with them. Take for instance the presumption that every one knows the law. The real meaning of this is that, speaking gen- erally, ignorance of the law is not taken as an excuse for breaking it. This rule cannot be properly appreciated if it is treated as a part of the Law of Evidence. It belongs to the Criminal Law. In the same way numerous presump- tions as to rights of property (in particular easements and incorporeal hereditaments) belong not to the Law of Evi- dence but to the Law of Real Property. The only pre- sumptions which, in my opinion, ought to find a place in the Law of Evidence, are those which relate to facts merely as facts, and apart from the particular rights which they INTRODUCTION. constitute. Thus the rule, that a man not heard of for seven years is presumed to be dead, might be equally appli- cable to a dispute as to the validity of the marriage, an action of ejectment by a reversioner against a tenant pur autre vie, the admissibility of a declaration against inter- est, and many other subjects. After careful considera- tion, I have put a few presumptions of this kind into a chapter on the subject, and have passed over the rest as belonging to different branches of the Substantive Law. Practice, again, appears to me to differ in kind from the Law of Evidence. The rules which point out the manner in which the attendance of witnesses is to be procured, evidence is to be taken on commission, depositions are to be authenticated and forwarded to the proper officers, interrogatories are to be administered, &c, have Kttle to do with the general principles which regulate the relevancy and proof of matters of fact. Their proper place would be found in codes of civil and criminal procedure. I have, however, noticed a few of the most important of these matters. A similar remark applies to a great mass of provisions as to the proof of certain particulars. Under the head of " Public Documents," Mr. Taylor gives amongst other things a list of all, or most, of the statutory provision? which render certificates or certified copies admissible in particular cases. To take an illustration at random, section 1458 (6th ed., 1872), begins thus : " The registration of medical practitioners under the Medical Act of 1858, may be proved by a copy of the ' Medical Register,' far the time INTRODUCTION. being, purporting," &c. I do not wish for a moment to undervalue the practical utility of such information, or the industry displayed in collecting it ; but such provision as this appears to me to belong not to the Law of Evidence, but to the law relating to medical men. It is a matter rather for an index or schedule than for a legal treatise, intended to be studied, understood, and borne in mind in practice. On several other points the distinction between the Law of Evidence and other branches of the law is more difficult to trace. Eor instance, the law of estoppel, and the law relating to the interpretation of written instruments, both run into the Law of Evidence. I have tried to draw the line in the case of estoppels by dealing with estoppels vn pais only, to the exclusion of estoppels by deed and by matter of record, which must be pleaded as such ; and in regard to the law of written instruments by stating those rules only which seemed to me to bear directly on the question whether a document can be supplemented or explained by oral evidence. The result is no doubt to make the statement of the law much shorter than is usual. I hope, however, that com- petent judges will find that, as far as it goes, the statement is both full and correct. As to brevity, I may say, in the words of Lord Mansfield : — "The law does not consist of particular cases, but of general principles which are illustrated and explained in those cases." * Every one will express somewhat differently the princi- ples which he draws from a number of illustrations, and liJ. v. Bembridge, 1783, 3 Doug. 332. INTRODUCTION. this is one source of that quality of our law which those who dislike it describe as vagueness and uncertainty, and those who like it as elasticity. I dislike the quality in question, and I used to think that it would be an improve- ment if the law were once for all enacted in a distinct form by the Legislature, and were definitely altered from time to time as occasion required. For many years I did my utmost to get others to take the same view of the subject, but I am now convinced by experience that the unwilling- ness of the Legislature to undertake such an operation proceeds from a want of confidence in its power to deal with such subjects, which is neither unnatural nor un- founded. It would be as impossible to get in Parliament a really satisfactory discussion of a Bill codifying the Law of Evidence as to get a committee of the whole House to paint a picture. It would, I am equally well satisfied, be quite as difficult at present to get Parliament to delegate its powers to persons capable of exercising them properly. In the meanwhile the Courts can decide only upon cases as they actually occur, and generations may pass before a doubt is set at rest by a judicial decision expressly in point. Hence, if anything considerable is to be done towards the reduction of the law to a system, it must, at present at least, be done by private writers. Legislation proper is under favourable conditions the test way of making the law ; but if that is not to be had, indirect legislation, the influence on the law of judges and legal writers, who deduce, from a mass of precedents, such principles and rules as appear to them to be suggested by the great bulk of the , authorities, and to be in themselves rational and convenient, is very much better than none at INTRODUCTION. all. It has, indeed, special advantages, which this is not the place to insist upon. I do not think the law can be in a less creditable condition than that of an enormous mass of isolated decisions, and statutes assuming unstated prin- ciples; cases and statutes alike being accessible only by elaborate indexes. I insist upon this because I am well aware of the prejudice which exists against all attempts to state the law simply, and of the rooted belief which exists in the minds of many lawyers that all general propo- sitions of law must be misleading and delusive, and that law books are useless except as indexes. An ancient maxim says, " Omnis definitio in jure periculosa/' Lord Coke wrote, "It is ever good to rely upon the books at large; for many times compendia sunt dispendia, and Melius est petere fontes quam sectari rivulos." Mr. Smith chose this expression as the motto of his ' Leading Cases,' and the sentiment which it embodies has exercised immense influ- ence over our law. It has not perhaps been sufficiently ob- served that when Coke wrote, the " books at large,'' namely the ' Year Books ' and a very few more modern reports, con- tained probably about as much matter as two, or at most three, years of the reports published by the Council of Law Reporting; and that the compendia (such books, say, 4 as Fitzherbert's ' Abridgment ') were merely abridg- ments of the cases in the ' Year Books ' classified in the roughest possible manner, and much inferior both in extent and arrangement to such a book as Fisher's ' Digest.' 1 In our own days it appears to me that the true fontes - i The ' Year Books ' from 1307-1535, 228 years, would fill not more than twenty-five volumes of the ' Law Reports.' INTRODUCTION. are not to bo found in reported cases, but in the rules and principles which such cases imply, and that the cases them- selves are the rivuli,the following of which is a dispendium. My attempt in this work has been emphatically petere fontes, to reduce an important branch of the law to the form of a connected system of intelligible rules and principles. Should the undertaking be favourably received by the profession and the public, I hope to apply the same process to some other branches of the law; for the more I study and practise it, the more firmly am I convinced of the ex- cellence of its substance and the defects of its form. Our earlier writers, from Coke to Blackstone, fell into the error of asserting the excellence of its substance in an ex- aggerated strain, whilst they showed much insensibility to defects, both of substance and form, which in their time were grievous and glaring. Bentham seems to me in many points to have fallen into the converse error. He was too keen and bitter a critic to recognise the substantial merits of the system which he attacked; and it is obvious to me that he had not that mastery of the law itself which is unattainable by mere theoretical study, even if the stu- dent is, as Bentham certainly was, a man of talent, ap- proaching closely to genius. During the last generation or more Bentham's influence has to some extent declined, partly because some of his books are like exploded shells, buried under the ruins which they have made, and partly because, under the influ- ence of some of the most distinguished of living authors, great attention has been directed to legal history, and in particular to the study of Roman Law. It would be diffi- INTRODUCTION. cult to exaggerate the value of these studies, but their nature and use are liable to be misunderstood. This history of the Roman Law no doubt throws great light on the history of our own; and the comparison of the two great bodies of law, under one or the other of which the laws of the civilised world may be classified, cannot fail to be instructive; but the history of bygone institutions is valuable mainly because it enables us to understand, and so to improve, existing institutions. It would be a com- plete mistake to suppose either that the Roman Law is in substance wiser than our own, or that in point of arrange- ment and method the Institutes and the Digest are any- thing but warnings. The pseudo-philosophy of the Insti- tutes, and the confusion of the Digest, are, to my mind, infinitely more objectionable than the absence of arrange- ment and of all general theories, good or bad, which dis- tinguish the Law of England. However this may be, I trust the present work will show that the Law of England on the subject to which it refers is full of sagacity and practical experience, and is capable of being thrown into a form at once plain, short, and systematic. I wish, in conclusion, to direct attention to the manner in which I have dealt with such parts of the Statute Law as are embodied in this work. I have given, not the very words of the enactments referred to, but what I understand to be their effect, though in doing so I have deviated as little as possible from the actual words employed. I have done this in order to make it easier to study the subject as a whole. Every Act of Parliament which relates to the Law of Evidence assumes the existence of the unwritten INTRODUCTION. law. It cannot, therefore, be fully understood, nor can its relation to other parts of the law be appreciated, till the unwritten law has been written down so that the provisions of particular statutes may take their places as parts of it. When this is done, the Statute Law itself admits of, and even requires, very great abridgment. In many cases the result of a number of separate enactments may be stated in a line or two. For instance, the old Common Law as to the incompetency of certain classes of witnesses was removed by parts of six different Acts of Parliament — the net result of which is given in four short articles (106-109). So, too, the doctrine of incompetency for peculiar or defective religious belief has been removed by many different enactments, the effect of which is shown in one article (123). The various enactments relating to documentary evi- dence (see chap, x.) appear to me to become easy to follow and to appreciate when they are put in their proper places in a general scheme of the law, and arranged according to their subject-matter. By rejecting every part of an Act of Parliament except the actual operative words which constitute its addition to the law, and by setting it (so to speak) in a definite statement of the unwritten law of which it assumes the existence, it is possible to combine brevity with substantial accuracy and fulness of state- ment to an extent which would surprise those who are acquainted with Acts of Parliament only as they stand in the Statute Book. 1 At the same time I should warn any i For a reference to statutes dealing strictly with evidence, see Note XLVIII., post. INTRODUCTION. one who may use this book for the purposes of actual prac- tice in or out of court, that he would do well to refer to the very words of the statutes embodied in it. It is very possible that, in stating their effect instead of their actual words, I may have given in some particulars a mistaken view of their meaning. Such are the means by which I have endeavoured to make a statement of the Law of Evidence which- will en- able not only students of law, but I hope any intelligent person who cares enough about the subject to study at- tentively what I have written, to obtain from it a knowl- edge of that subject at once comprehensive and exact — a knowledge which would enable him to follow in an intelli- gent manner the proceedings of Courts of Justice, and which would enable him to study cases and use text-books of the common kind with readiness and ease. I do not say more than this. I have not attempted to follow the matter out into its minute ramifications, and I have avoided refer- ence to what after all are little more than matters of curi- osity. I think, however, that any one who makes himself thoroughly acquainted with the contents of this book, will know fully and accurately all the leading principles and rules of evidence which occur in actual practice. If I am entitled to generalise at all from my own ex- perience, I think that even those who are already well acquainted with the subject will find that they understand the relations of its different parts, and therefore the parts themselves more completely than they otherwise would, by being enabled to take them in at one view, and to consider them in their relation to each other. LIST OF ENGLISH ABBREVIATIONS A. & E. • - • - Adolphus & Ellis's Eeports. Atk. ----- Atkyns's Eeports. B. & A. - - - - Barnewall & Alderson's Eeports. B. & Ad. - - - - Barnewall & Adolphus's Eeports. B. & B. - - - - Broderip & Bingham's Eeports. B. & C. - - - Barnewall & Cresswell's Eeports. B. & P. - - - - Bosanquet & Puller's Eeports. B. & S. - - - - Best & Smith's Eeports. B. N. P. - - - - Buller's Nisi Prius. Beav. Beavan's Eeports. Bell, C. C. - - - Bell's Crown Cases. Best Best on Evidence, 6th ed. Bing. - - - - Bingham's Eeports. Bing. N. C. - - - Bingham's New Cases. Bligh - - . . Bligh's Eeports, House of Lords. Br. P. C. ... Brown's Parliamentary Cases. Buller, N. P. - - - Buller's Nisi Prius. C. & F. - - - - Clark & Finnelly's Eeports. C. & J. - - - - Crompton & Jervis's Eeports. C. & Marsh. - - Carrington & Marshman's Eeports. C. & P. - - - - Carrington & Payne's Eeports. C. B. - Common Bench Eeports. C. B. (N. S.) - - - Common Bench Eeports. New Series. C. M. & E. - - - Crompton, Meeson, & Eoscoe's Eeports. Camp. ----- Campbell's Eeports. Car. & Kir. - - - Carrington & Kirwan's Eeports. Coke Coke's Eeports. Cowp. .... Cowper's Eeports. Cox Cox's Eeports, Chancery. Cox, C. C. - - - Cox's Criminal Cases. D. (or Dears.) & B. - Dearsley & Bell's Crown Cases. _ "' „ _ £ Dearsley's Crown Cases. Dearsley & P. - - - ) De G. & J. - - -De Gex & Jones's Eeports- xxxiii LIST OF ABBREVIATIONS. De G. M. & G. - - De Gex, Macnaghten, & Gordon's Bank- ruptcy Cases. De G. &, S. - - -De Gex & Smale's Reports. Den. C. C. - - - Denison's Crown Cases. Doug. Douglas's Reports. Dru. & War. - Drury & Warren's Reports. E. & B. - - - - Ellis & Blackburn's Reports. Ea. ..... East's Reports. East, P. C. - - - East's Pleas of the Crown. Esp. .... - Espinasse's Reports. Ex. ..... Exchequer Reports. F. & F. - - - - Foster & Finlason's Reports. Gen. View Crim. Law Stephen's General View of the Criminal Law. Godbolt Godbolt's Reports, K. B. H. & C. - - - - Hurlstone & Coltman's Reports. H. & N. - - - - Hurlstone & Norman's Reports, H. L. C. - - - - House of Lords Cases. Hale, P. C. - - - Hale's Pleas of the Crown. Hare Hare's Reports. H. Bl. • H. Blackstone's Reports. Ir. Cir. Rep. - - - Irish Circuit Reports. Ir. Eq. Rep. - - - Irish Equity Reports. Jac. & Wal. -.- Jacob & Walker's Reports. Jebb, C. C. - - - Jebb's Crown Cases (Ireland). K. & J. - - - - Kay & Johnson's Reports. Keen Keen's Reports, Chancery. L. & C. - - - - Leigh & Cave's Crown Cases. Leach Leach's Crown Cases. M. & G. - - - - Manning & Granger's Reports. M. & K. - - - - Mylne & Keen's Reports. M. & M. - - - - Moody & Malkin's Reports. M. & R. - - - - Moody & Ryan's Reports. M. & S. - - - - Maule & Selwyn's Reports. M. & W. .... Meeson & Welsby's Reports. Madd. Maddock's Reports. Man. & Ry. ... Manning & Ryland's Reports. LIST OF ABBREVIATIONS. McNally Ev. - - McNally's Rules of Evidence. Moo. C. C. - - - Moody's Crown Cases. Moo. P. C. - - - Moore's Privy Council Reports. Mo. & Ro. - - - Moody & Robinson's Reports. N. C. - - - - - Bingham's New Cases. Pea. R. - - - - Peake's Reports. Phill. .... - Phillip's Reports. Ph. Ev. - - - Phillips on Evidence, 10th ed. - Price's Reports. Q. B. - - - - - Queen's Bench Reports. R. & R. - - - - Russell & Ryan's Crown Cases. Rep. --- - - Coke's Reports. R. N. P., or - - Roscoe, N. P. [• Roscoe's Nisi Prius, 16th ed. Russ. Cri. - Russell on Crimes, 6th ed. Russ. & Myl. - - Russell & Mylne's Reports, Chancery. Selw. N. P. - - - Selwyn's Nisi Prius. Simon - - - Simons' Reports. Sim. (N. S.) - - Simons' Reports. New Series. Sim. & Stu. - - Simon & Stuart's Reports. S. L. C, or - - Smith. L. C. - - " i Smith's Leading Cases, 10th ed. Star. ---. Starkie's Reports. Starkie, or - Star. Ev. - " j. Starkie on Evidence, 4th ed. S. T., or St. Tri. - - State Trials. Swab. Ad. - Swabey's Admiralty Reports. Sw. & Tr., or Swa. & Tri., or - S. & T. - - * ) Swabey & Tristram's Reports, Probate and " C Divorce. T. R. - - - - - Term Reports. T. E. - - - - - Taylor on Evidence, 9th ed. Tpu. - - - - Taunton's Reports. Ve. - - - - - Vesey's Reports. Vin. Abr. - - - Viner's Abridgment. Wigram - - - Wigram on Extrinsic Evidence. Wills' Circ. Ev. - - Wills on Circumstantial Evidence. Wils., or - Wilson - - - " t Wilson's Reports. A DIGEST LAW OF EVIDENCE A DIGEST OP THE LAW OF EVIDENCE. PART I. RELEVANCY. CHAPTER I. PRELIMINARY. Article 1.* definition of terms. In this book the following words and expressions are used in the following senses, unless a different intention appears from the context. "Judge" includes all persons authorised to take evi- dence, either by law or by the consent of the parties. " Fact " includes the fact that any mental condition of which any person is conscious exists. " Document " means any substance having any matter expressed or described upon it by marks capable of being read. * See Note I. .1 DIGEST OF [Past I. " Evidence " means — (1) Statements made by witnesses in court under a legal sanction, in relation to matters of fact under inquiry ; such statements are called oral evidence : (2) Documents produced for the inspection of the Court or judge; such documents are called documentary evidence: u Conclusive Proof " means evidence upon the produc- tion of which, or a fact upon the proof of which, the judge is bound by law to regard some fact as proved, and to ex- clude evidence intended to disprove it. " A presumption " means a rule of law that Courts and judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth of such inference is disproved. The expression " facts in issue " means — ( 1 ) All facts which, by the form of the pleadings in any action, are affirmed on one side and denied on the other : (2) In actions in which there are no pleadings, or in which the form of the pleadings is such that distinct issues are not joined between the parties, all facts from the estab- lishment of which the existence, non-existence, nature, or extent of any right, liability, or disability asserted or denied in any such case would by law follow. The word " relevant " means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other. Chap. I.] THE LAW OF EVIDENCE. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 1, 14, 15, 33, 44, 49, 50; 1 Taylor on Evidence ( Chamberlayne's 9th ed.), sees. 1, 70, 71, 109, 110, p. 2183. " Evidence " defined. — ■ Mr. Thayer defines the term evidence as " any matter of fact which is furnished to a legal tribunal," regarding the definition of the text as too narrow in that it excludes matters of fact demonstrated to the senses of the judge, as where a coat is put on in court to show its fit. Cases on Evidence, p. 2. Evidence presented to senses of judge. — An instance of evidence not included in the definition of the text, but embraced by Mr. Thayer's definition quoted in the note to this article, occurs in Brotcn v. Foster, 113 Mass. 137, where, in a controversy over the fit of a coat, the coat is put on. Mental condition. — Mental condition is to be established as a fact. Wheelden v. Wilson, 44 Me. 1; State v. Lee, 69 Conn. 197; Chandler v. Barrett, 21 La. Ann. 58, 99 Am. Dec. 701; Titcomb v. Vantyle, 84 111. 371; Armstrong v. State, 30 Fla. 170, 17 L. K. A. 484. An alleged mental condition can be established by a mere prepon- derance of proof. Greene v. Phoenix Hut. Life Ins. Co., 134 111. 310, 10 L. E. A. 570. Where mental condition is in issue, evidence of condition before and after the time in question, if not too remote, is relevant. White v. Graves, 107 Mass. 325. " Presumption " defined. — " The term ' presumption ' is used to signify that which may be assumed without proof, or taken for granted." Ward v. Metropolitan Life Ins. Co., 66 Conn. 238. The conclusion or probable inference drawn in favor of the exist- ence of one fact from others in proof is a legal presumption. Tan- ner v. Hughes, 53 Pa. St. (3 P. F. Smith) 289; L7. S. v. Scarcey (D. C.) 26 Fed. R. 435. " A presumption, or a probability — for in this connection these words mean the same thing — is an inference as to the existence or non-existence of one fact from the existence or non-existence of some other fact, founded on a previous experience of that connection." Fay v. Reynolds, 60 Conn. 220. It is to be noted that the author uses the word " presumption " as referring to disputable presumptions of law only and treats " con- 6 A DIGEST OF [Part I. elusive presumptions " under " conclusive proof." Presumptions of fact form no part of the law of evidence. They have " simply the force of an argument." Ward v. Metropolitan Life Ins. Co., 66 Conn. 239 (citing Stephen's Digest). Test of relevancy. — " The law furnishes no test of relevancy. For this it tacitly refers to logic and general experience, — assuming that the principles of reasoning are known to its judges and ministers, just as a vast multitude of other things are assumed as already sufficiently known to them." Thayer's Preliminary Treatise on Evidence, p. 265. " Relevant " defined. — The definition of " relevant " of the text is adopted substantially in Plumb v. Curtis, 66 Conn. 166; State v. Blake, 69 Conn. 70, both of which cite Stephen's Digest. Illustrations of relevant facts. — Upon the question as to whether a sale was in fraud of creditors, the declaration of the purchaser that he was not in condition to pay anything for the goods, is relevant. Dale v. Gower, 24 Me. (11 Shep.) 533. See also Trull v. True, 33 Me. 367. Testimony as to the management and speed of an engine at a cross- ing is relevant upon the question of the management and speed, about a minute later, at a crossing three-quarters of a mile distant. Lyman v. Boston & Maine R. R. Co., 66 N. H. 200, 11 L. R. A. 367. In an action against a railroad company, for closing a street on which the plaintiff owned a lot, evidence of the amount of travel pass- ing over the street is relevant. Johnston v. Old Colony R. R. Co., 18 It. I. 642, 29 Atl. 594. Testimony that a wife attended to all her husband's business is rele- vant on the question of her agency in a particular transaction. San- born v. Cole, 03 Vt. 590, 14 L. R. A. 210. Evidence of extravagance is relevant in connection with other evidence in an embezzlement case. Hackett v. King, 8 Allen (Mass.), 144. That an employer paid for the board of some of his employees at various jilares. and that such was his general custom, is relevant upon the issue of whether he is liable for the board of a particular employee at a particular place. Divight v. Brown, 9 Conn. 89. Testimony. — The term testimony refers to evidence given by wit- nesses and excludes documentary evidence. Dibble v. Dimmick, 143 N. Y. 549, 554. Evidence presented to the senses of the triers. — A physical object, e. q.. a piece of iron, may, under proper circumstances, be exhibited to the jury. King v. Neiv York Central Railroad Co., 72 N. Y. 607. Chap. L] THE LAW OF EVIDENCE. 7 Moral evidence. — Moral evidence is evidence sufficient to induce a belief upon which men would act in their own affairs. BabcocJc v. Fitchburg It. R. Co., 140 N. Y. 308, 311. Cumulative evidence. — Cumulative evidence is evidence of the same kind to the same point. People v. Superior Court, 10 Wend. 285, 294. The fact that evidence is cumulative does not in many instances lessen its importance. Abenheim v. Samuels, 22 N. Y. St. R. 636, 5 N. Y. Supp. 117, 16 N. Y. St. R. 907. Circumstantial evidence. — Circumstantial evidence is evidence of facts from which the existence of other facts may be inferred. Peo- ple v. Harris, 136 N. Y. 423. It is admissible both in civil and in criminal cases, and sometimes is the most convincing that can be had. People v. Videto, 1 Park. 603; People v. Davis, 46 N. Y. St. R. 213; 9 N. Y. Crim. 334; affirmed, on opinion below, in 135 N. Y. 646. It is not error to refuse to charge that direct evidence is always the most satisfactory. People v. Johnson, 140 N. Y. 350, 55 N. Y. St. R. 783. Difference between evidence and testimony. — Jones v. Gregory, 48 111. A pp. 228. Prima facie evidence defined in Lovell v. Drainage District, 159 111. 188: McChesney v. Chicago, 159 111. 223. Changing rules of evidence. — The legislature has power to change the rules of evidence. Such changes affect matters of procedure only, do not impair the obligation of contracts or contravene any provision of the Constitution. C. } B. cC- Q. R. R. Co. v. Jones, 149 111. 361 ; Gage v. Caraher, 125 111. 447, 451. New Jersey. Cumulative evidence. — Cumulative evidence means " additional evi- dence to support the same point, and which is of the same character with evidence already produced." Manufacturing Co. v. Van Riper, 33 N. J. L. 156. Material evidence defined. — Quick v. Lilly, 3 N. J. Eq. 257. Presumptions. — Presumptions of law and presumptions of fact distinguished. Snediker v. Everingham, 27 N. J. L. 150, 153; Gulick v. Loder, 13 N. J. L. 68, 72. Circumstantial evidence — Instances. — Berckmans v. Berckmans, 16 N. J. Eq. 122, 17 N. J. Eq. 453; Day v. Day, 4 N. J. Eq. 444; Adams v. Adams, 17 N. J. Eq. 324. 8 A DIGEST OF [Pact I. Examples of irrelevant testimony. — Wiley v. Railroad Co., 44 N. J. L. 247 ; Fitzgerald v. Faunce, 46 N. J. L. 599 ; Temperance Hall Assn. V. GiZes, 33 N. J. L. 260; Reed v. Pierson, Pen. 681; Bank V. Harm, 3 Harr. 222. Antenuptial incontinence irrelevant in divorce. Hedden v. Hedden, 21 N. J. Eq. 61. Best evidence. — The testimony of a person as to his own signature is of no higher character as evidence than the testimony of another who is acquainted with his handwriting. Lefferts v. State, 49 N. J. L. 26. Court equally divided. — All evidence should be admitted by an affirmative order of court, so that if the court are equally divided oj> a question of admitting evidence it should be excluded. Jackson V. Miller, 25 N. J. L. 90; Jessup v. Cook, 1 Hal. 434, 440; Price V. Tollman, Coxe 447. See Kirby v. Coles, 3 Green, 441. Inadmissible testimony. — ^Yhere one puts in illegal evidence with- out objection he has no right to put in other illegal evidence to explain it. Brand v. Longstreet, 4 N. J. L. 325. Admission of irrelevant evidence on the part of the State without objection is no reason for admitting similar evidence for the de- fendant. Cook v. State, 24 N. J. L. 843. Maryland. Rebutting evidence. — Rebutting evidence is that which shows »that the evidence of the other party is not entitled to the force and effect which the law imputes to it prima facie. Davis V. Hamblin, 51 Md. 525. Meeting irrelevant evidence. — The fact that one party introduces incompetent evidence does not authorize the other to introduce simi- lar evidence. Gorsuch v. Rutledge, 70 Md. 272; Walkup v. Pratt, 5 H. & J. 56; Railroad Co. v. Woodruff, 4 Md. 255; Mitchell v. Sell- man. 5 Md. 376. When irrelevant evidence has been admitted over a party's ob- jection, he is entitled to introduce evidence to explain or contradict it. Lake Roland Ry. Co. v. Frick, 86 Md. 273. Affirmative and negative evidence. Affirmative evidence of a fact is entitled to more weight than negative. Riswick v. Goodhue, 50 Md. 57. Best evidence rule. — The rule requiring the best evidence refers to quality and not to quantity, but does not exclude a weak witness Chap. I.J THE LAW OF EVIDENCE. 9 merely because a strong one might have been produced. A boundary may be proved by one who saw the line run as well as by the surveyor who did the work. Richardson v. MUburn, 17 Md. 67. Pertinent evidence is admissible even though it is weak and in- conclusive. Fulton v. Maccracken, 18 Md. 528. Res inter alios. — Statements and acts of third parties not in the presence of a party are not deemed relevant as against him. Baker V. Gunther, 53 Md. 373 ; Insurance Co. v. Carlin, 58 Md. 336 ; Swartz v. Chickering, 58 Md. 290; Basford v. Parran, 8 Md. 360. The statement of the consideration in a deed is not admissible against one not a party thereto to show the price paid. Lake Roland Ry. Co. v. Frick, 86 Md. 259. Assurance of counsel as to relevancy. — Evidence that seems to be irrelevant will be admitted on the assurance of counsel that other evidence will be introduced later to render its relevancy clear; if counsel fails to do so, such evidence must be withdrawn from the jury- Rosenstock v. Tormey, 32 Md. 169; Chelton v. State, 45 Md. 564; Baker v. Swann, 32 Md. 355; Beall v. McCulloh, 27 Md. 651; Bushman v. Morling, 30 Md. 384; Crawford v. Beall, 21 Md. 208; Atwell v. Miller, 6 Md. 10. Credible witness. — A "credible witness," as used in the statute of wills, means one competent to testify at the time he signs. Estep V. Morris, 38 Md. 424; Higgins v. Carlton, 28 Md. 115. An "issue" denned. — Barth v. Rosenfeld, 36 Md. 617. Experiments to test accuracy. — Evidence of experiments to show whether voices might be heard between two designated places is ad- missible. Gambrill v. Schooley, 95 Md. 260. Objecting to evidence. — An objection to the admission of evidence should not be sustained if any part of such evidence offered is rele- vant. Scarlett v. Acad, of Music, 46 Md. 132. Evidence offered for a special purpose. — Evidence need not be in- troduced for any special purpose, and is then admissible if relevant to any part of the issue; but if counsel states a special purpose, and the evidence is not admissible for that purpose, it will be excluded. Byers v. Horner, 47 Md. 23; Conner v. Mt. Vernon Co., 25 Md. 55; Nutwell v. Tongue, 22 Md. 419; McTavish v. Carroll, 13 Md. 429; Pegg v. Warford, 7 Md. 582. Limiting scope of evidence. — Evidence admitted for one purpose only cannot be used by the party for other purposes. Emory v. Otcings, 3 Md. 17S. 10 A DIGEST OF [Part I. Contradicting pleadings. — Evidence in contradiction of the allega- tions in one's own pleadings is not admissible. O'Brien v. Fowler, 67 Mil. 561; Kribs v. Jones, 44 Md. 396; Wright v. Gilbert, 51 Md. 140; Turner v. Maddox, 3 Gill, 190. Mental condition, etc. — Direct evidence of a person is admissible as to his motive, belief, or intention. Phelps v. Railroad Co , 60 Md. 536. Opinions of counsel. — Opinions of counsel are not evidence. Dorsey v. Hammond, 1 Har. & J. 190. Questions by court. — Evidence may be brought out on motion of the court itself. Fisher v. Fisher, 95 Md. 314. Pennsylvania. Relevancy. — Where the admissibility of evidence depends upon the existence of a fact, the evidence will be received if there has been given any testimony from which the jury may infer the existence of the fact. Blair v. Seaver, 26 Pa. 274. Evidence rejected for one purpose may be admitted for another. Moore v. Smith, 14 S. & R. 388; O'Neil v. Whitecar, 1 Phila. 440. Evidence may be given of a fact that is badly pleaded. Hill v. Hill, 32 Pa. 511. When a matter has been averred in the declaration unnecessarily or insufficiently, evidence may be given to support it. Hake v. Fink, 9 Watts, 336; Thompson v. Barkley, 27 Pa. 263; Hobensack v. Hall- man, 17 Pa. 154; Howell v. McCoy, 3 Rawle, 256; Edgar v. Boies, 11 S. & R. 445; Sommer v. Wilt, 4 S. & R. 19. If inadmissible evidence has been allowed to be given without ob- jection, the jury may consider it. McCullough v. Elder, 8 S. & R. 181; Weckerly v. Geyer, 11 S. & R. 35. The commonwealth is subject to the same rules of evidence as a citizen. Its evidence must be relevant, material, and the best at- tainable. Ash's Estate, 202 Pa. 422. Material evidence is admissible even though unsupported it would be insufficient. Haughey v. Strickler, 2 W. & S. 411; Com. v. Leeds, 83 Pa. 453; Brown v. Clark, 14 Pa. 469. Evidence of intention. — One may give testimony as to what hi9 intention was. Cullmans v. Lindsay, 114 Pa. 166. Testimony known to be untrue. — The judge and jury are not bound to accept testimony which they themselves know to be untrue. Where, on a motion for a new trial, testimony was offered to show Chap. I.] THE LAW OF EVIDENCE. 11 that a juryman had fallen asleep, it was no error to exclude it when the judge knew the facts himself. Com. V. Jongruss, 181 Pa. 172. Latitude allowed. — Great latitude is allowed in admitting circum- stantial evidence on the question of fraud. Stewart v. Fenner, 81 Pa. 177; Burkholder v. Plank, 69 Pa. 225; Rees v. Jackson, 64 Pa. 486. Mental condition. — A wide scope allowed in admitting evidence of mental capacity. Rouch v. Zehring, 59 Pa. 74. Evidence of hereditary taint is relevant. Smith v. Kramer, 5 Clark, 226. Evidence in rebuttal. — When one party has introduced incompe- tent evidence it may be rebutted by the other. Morris v. Travis, 7 S. & R. 220. Presumptions. — Presumption of fact and presumption of law de- fined. Com. v. Frew, 3 Pa. Co. Ct. 492. A presumption must be based upon facts and not upon another presumption. Welsh v. Railroad Co., 181 Pa. 461. The conclusion or probable inference drawn in favor of the ex- istence of one fact from others in proof is a legal presumption. Tanner v. Hughes, 53 Pa. 289. Circumstantial evidence. — No inference can be drawn from cir- cumstantial evidence unless the circumstances be themselves proved. They cannot be presumed. Douglass v. Mitchell, 35 Pa. 440; War- ren v. Com., 37 Pa. 45. Circumstantial evidence compared as to weight with direct evi- dence. Com. v. Harman, 4 Pa. 269. Circumstantial evidence is admissible if relevant. Davenport v. Wright, 51 Pa. 292. Circumstantial evidence to establish the existence of a document. Bright v. Allan, 203 Pa. 386. Positive and negative evidence. — As to their relative value, see Hess v. Railroad Co., 181 Pa. 492. Positive testimony of a fact is entitled to greater weight than negative evidence against it. JJrias v. Pennsylvania R. Co., 152 Pa. 326 ; Floyd v. Phila. £ R. R. Co., 162 Pa. 29. Best evidence. — The best evidence in the power of the party must be produced. Hamilton v. Van Swearingen, Add. 48; Bank v. White- hill, 16 S. & R. 89; Bryant v. Stilwell, 24 Pa. 314. Corroborative evidence. — Evidence is not admissible to corroborate unless it also tends to prove the disputed fact. Wolle v. Brown, 4 Wliart. 365. 12 A DIGEST OF [Part I. Example of cumulative testimony. — Wiley v. McGrath, 194 Pa. 498. Real evidence. — To prove malpractice, an injured limb was ex- hibited to the jury. Fowler v. Sergeant, 1 Grant, 355. Experiments. — Proof of experiments to show the effect of powder on clothing is admissible. Com. v. Sullivan, 13 Phila. 410; Sullivan v. Com., 93 Pa. 284. A model of a scaffold may be used for illustration. Geist v. Rapp, 206 Pa. 411; Hagan v. Carr, 198 Pa. 60G. A handwriting expert may illustrate his meaning by a diagram, and counsel may refer to such diagram in argument, though such diagram is not evidence in itself. Hagan v. Carr, 198 Pa. 606. Last paragraph, — Rodgers v, Stophel, 32 Pa. 111. Chap. II.] THE LAW OF EVIDENCE. 13 CHAPTEK II. OF FACTS IN ISSUE AND RELEVANT TO TEE ISSUE. Article 2.* facts in issue and facts relevant to the issue may be proved. Evidence may be given in any proceeding of any fact in issue, and of any fact relevant to any fact in issue unless it is hereinafter declared to be deemed to be irrelevant, and of any fact hereinafter declared to be deemed to be relevant to the issue, whether it is or is not relevant thereto. Provided that the judge may exclude evidence of facts which, though relevant or deemed to be relevant to the issue, appear to him too remote to be material under all the circumstances of the case. Illustration. (a) A is indicted for the murder of B, and pleads not guilty. The following facts may be in issue: — The fact that A killed B; the fact that at the time when A killed B he was prevented by dis- ease from knowing right from wrong; the fact that A had received from B such provocation as would reduce A's offence to manslaughter. The fact that A was at a distant place at the time of the murder would be relevant to the issue; the fact that A had a good character would be deemed to be relevant; the fact that C on his deathbed de- clared that C and not A murdered B would be deemed not to be relevant. • See Note II. 14 A DIGEST OF [Pabt I. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 49-55; McKelvey on Evidence, p. 12G et seq.; Thayer's Preliminary Treatise on Evidence, pp. 265, 266; Trull v. True, 33 Me. 367. " Unless excluded by some rule or principle of law, all that is logi- cally probative is admissible." Thayer's Preliminary Treatise on Evidence, p. 265. " No precise and universal test of relevancy is furnished by the law. The question must be determined in each case according to the teach- ings of reason and judicial experience. Thayer's Cases on Evidence, pp. 2, 3. If the evidence conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury. Ins. Co. v. Weide, 11 Wall. 43S, 440." Plumb v. Curtiss, 66 Conn. 166; Ward v. Young, 42 Ark. 542. All relevant facts are admissible unless it is affirmatively shown that they are excluded by some rule of law. " Evidence is admitted not because it is shown to be competent, but because it is not shown to be incompetent." Plumb v. Curtis, 66 Conn. 166. Testimony which tends to support only a portion of the plaintiff's case is not thereby made irrelevant or incompetent. Gardner v. Cren- shaio, 122 Mo. 79, 27 S. W. 612; Bartlett v. Evarts, 8 Conn. 527. The admissibility of relevant evidence is not affected by the fact that it was obtained illegally or improperly. Trask v. People, 151 111. 523. As by a decoy letter. Andrews v. U. 8., 162 U. S. 420. Facts interwoven with relevant facts are admissible. St. Clair v. U. 8., 154 U. S. 134, 149. Remote evidence. — If evidence is of facts too remote to be ma- terial, the judge may exclude it. White v. Graves, 107 Mass. 325. Collateral facts. — Irrelevant facts are sometimes called " collateral facts." 1 Greenleaf on Evidence (15th ed.), sec. 52. adopted in Eaton v. Telegraph Co.. 6S Me. 67 ; Moore v. Richmond, 85 Va. 538. Must be relevant or deemed to be relevant. — Johnson v. Carley, 53 How. Pr. 326- Whintringham v. Dibble. 66 N. Y. 634; Van Buren v. Wells. 19 Wend. 203: Fuller v. Clark, 3 E. T>. Smith. 302; Aber- hall v. Poach. 3 E. D. Smith. 345. 11 How. Pr. 95. Evidence is relevant, which tends to establish the issue. Tt is ad- missible if not excluded by some rule of evidence. Plainer v. Plat- tier. 78 N. Y. no. Chap. II.] THE LAW OF EVIDENCE. 15 It is error to rule out evidence directly tending to support the issues. . Scholey v. Mumford, 64 X. Y. 521; Rumsey v. Cook, 9 Hun, 129; Hayes v. Ball, 72 N. Y. 418. Such as evidence which tends to negative the defence. Banks v. Carter, 7 Daly, 417. Or to explain and thus defeat a prima facie case. Richard v. Wellington, 60 N. Y. 308; Wallis v. Randall, 10 Hun, 33, 81 N. Y. 104. Evidence cannot be excluded on account of any defect in the plead- ings, which can be cured by amendment. Lathrop v. Godfrey, 3 Hun, 739, S. C. 90. Evidence is competent if it tends to prove the issue. K., P. & B. Co. v. Guthrie, 64 111. App. 523; Hough v. Cook, 09 111. 581; R., R., I. & St. L. R. R. Co. v. Rafferty, 73 111. 58; Evans v. George, 80 111. 51; Stastney v. Marschall, 37 111. App. 137, 140. Evidence to be admissible must be relevant. Welch v. Zerger. 29 111. App. 349; Law v. Greenwood, 30 111. App. 180; Grubcy v. Nat. Bank, 35 111. App. 350; Powell v. McCord, 121 111. 330, 333; Avery v. Moore, 133 111. 74. 77; Warner v. Crandall, 05 111. 195; Johnson v. T'on Kettler, 06 111. 63; Gibson v. Troutman, 9 Brad. 94; Gulliher v. People, 82 111. 145; Johnson v. People, 94 111. 505; Hollaicay v. Johnson, 23 111. App. 331. Evidence which tends to support some of the issues is compe- tent. Carter v. Carter, 152 111. 434; Hunter v. Harris, 29 111. App. 200, 207. Evidence not wholly irrelevant is admissible. Hunter v. Harris, 29 111. App. 200, 207. Evidence admissible for one purpose may be admitted for that purpose. Huthmacher v. Lowman, 66 111. App. 448 ; Marder v. heavy, 35 111. App. 420, 422. Evidence competent against one of two defendants is admissible. Consol. Ice M. Co. v. Keifer, 134 111. 481, 494; Crosby v. People, 137 111. 325, 334. The competency of evidence is not affected by the fact that it was obtained illegally. Trask v. People, 151 111. 523. Preliminary inquiries. — Preliminary inquiries, although as to mat- ters otherwise irrelevant, may be allowed. Mapley v. Irwin, 16 111. App. 363. Preliminary questions, such as age, residence, and occupation, are admissible. C. & A. R. R. Co. v. Lammert, 12 Brad. 408. Explanatory evidence. — Evidence necessary to explain evidence already in the case is admissible. Overtoon v. C. d- E. I. R. R. Co.. 181 111. 323, 54 N. E. 898, reversing 80 111. App. 515. 16 A DIGEST OF [Past I. Too remote. — Proof of value two years after is inadmissible. Horner v. Zimmerman, 45 111. 14. New Jersey. Relevancy defined. — To be relevant, evidence must be such as will assist in the determination of the issue. Marsh v. Machine Co., 57 N. J. L. 36. Relevancy for any one purpose. — Evidence admissible for one pur- pose cannot be excluded because not admissible for other purposes. Trenton P. It. Co. v. Cooper, 60 N. J. L. 219. Irrelevant testimony.— Evidence of the value of a house is ir- relevant to show the value of services in building it. Jersey Co. v. Davison, 29 N. J. L. 415. A contract which has been declared void by a court of equity is inadmissible in a court of law. Weart v. Hoagland, 2 Zab. 517. Meeting irrelevant evidence. — One may not introduce irrelevant evidence merely because the other party has done so. Cook v. State, 4 Zab. 843. Penalties for refusal to answer.— Before penalties will be enforced against a witness for refusing to answer questions, their materiality must bo established. Ladenburg v. Railroad Co., 66 N. J. L. 187. Former acquittal of crime. — In criminal cases a verdict of ac- quittal may be given in evidence on a plea of autrefois acquit even though no judgment was ever entered on the verdict. West v. State, 2 Zab. 213. Raising collateral issues. — ■ Evidence which tends to raise many collateral issues excluded. Railroad Co. v. Doughty, 2 Zab. 495. Evidence admissible by statute. — Evidence may be made admis- sible by statutes which would otherwise have been deemed irrelevant. Woodbridge v. Allen, 43 N. J. L. 262. Matters not pleaded. — Evidence is not competent if it relates only to matters not pleaded. Vansciver v. Bryan, 13 N. J. Eq. 434; Marshman v. Conklin, 21 N. J. Eq. 546; Evans v. Huffman, 5 N. J. Eq. 354. Maryland. Irrelevant evidence inadmissible. — Irrelevant matters not receiv- able in evidence. Maslin v. Thomas, 8 Gill, 18; Dorsey v. Whipps, 8 Gill, 457 ; Green v. Caulk, 16 Md. 556. When a question seems irrelevant, and no promise is made to show its relevancy later on, it must be excluded. Stewart v. Spedden, 5 Md. 433. Chap. II.] THE LAW OF EVIDENCE. 17 In an action of replevin, evidence to show that the defendant had taken the benefit of the insolvent laws is irrelevant. Basford V. Mills, 6 Md. 385. In slander, evidence of a breach of contract or of a distraint of goods or of a suit for trespass is not relevant. Gambrill v. Schooley, 95 Md. 260. Where a corporation is an executor, threats made by an officer thereof against the contestants are irrelevant. Berry v. Safe Deposit Co., 90 Md. 45. Collateral facts are those that afford no reasonable inference of the existence of the fact to be proved. Lee v. Tinges, 7 Md. 215. Evidence that the defendant was ignorant of the law he violated is irrelevant. Grumbine v. State, 60 Md. 355. Another contract. — In an action on a contract for work done it is not permitted for defendant to prove that the plaintiff had another contract with a third person covering the same period. Baker v. Gunther, 53 Md. 373. Example of irrelevant evidence. — Donahue v. Shedrick, 46 Md. 226. Reason for excluding irrelevant evidence.— Irrelevant evidence is excluded because it consumes the public time, distracts the minds of the jurors, and is unfair to the opposite party since he could not have foreseen it and prepared to meet it. Bloomer v. State, 48 Md. 521. Question irrelevant in part. — The question, " Can you tell how fast a car is coming at night, or are you different from other people? " is objectionable since it is irrelevant in part. United Railways Co. v. Seymour, 92 Md. 425. Contradicting irrelevant testimony. — If irrelevant evidence has been introduced by one party that will be injurious to the other, he may contradict it. Gorsuch v. Rutledge, 70 Md. 272. Irrelevant evidence cannot be introduced merely because such evi- dence was introduced by the opposite party. Railroad Co. v. Wood- ruff, 4 Md. 242; Bannon v. Warfield, 42 Md. 22; Biggins v. Carlton, 28 Md. 115; Warner v. Hardy, 6 Md. 525; Walkup V. Pratt, 5 II. & J. 51. Immaterial evidence not admissible. — Wyman v. Rae, 11 Gill & J. 416. Evidence of facts too remote. — In slander the details of a dis- charge in bankruptcy thirty years before are too remote to be deemed relevant. Gambrill v. Schooley, 95 Md. 260. 2 IS A DIGEST OF [Pabt L Evidence that is remote and collateral to the issue should be excluded. Davis v. Calvert, 5 G. & J. 209. Relevancy defined. — All evidence from which there may be drawn a fair and reasonable inference of the existence of the fact to be tried is relevant. Brooke v. Winters, 39 Md. 505. Weak relevant evidence. — Evidence if relevant is not to be ex- cluded on the ground that it is weak and inconclusive. Richardson v. Milburn, 17 Md. 67. Evidence relating to the issue is admissible, even though insuffi- cient when standing alone. Brooke v. Quytm, 13 Md. 379. Evidence will not be excluded as to a fact upon which issue has been joined, even though such fact does not constitute a legal bar to the action. Mitchell v. Williamson, 9 Gill, 72; Shriner v. Lam- lorn, 12 Md. 170. Insanity. — As to what evidence is relevant to prove insanity, see Spencer v. State, 69 Md. 28. Forgery. — On question of forgery of a bond the facts that the alleged signer is illiterate, that the subscribing witnesses lived sixty miles away and are of bad reputation, are relevant. Sides v. Schncbhj, 3 Har. & McH. 243. Assurance of counsel that evidence is relevant. — Evidence seem- ingly irrelevant may be admitted on assurance of counsel that his further evidence will show its relevancy. Davis v. Calvert, 5 G. & J. 269. Relevancy to prove fraud. — On questions of fraud, the door is opened wide to the admission of testimony, though its relevancy be slight. Davis v. Calvert, 5 G. & J. 269. Evidence relevant in rebuttal. — When a witness has testified that he recognized a person at a certain distance, testimony of others with equally good eyesight is relevant to show that they could not recognize any one at that distance. Richardson v. State, 90 Md. 109. Order of proof. — A party may introduce his evidence, if relevant, in the order in which he sees fit, and he cannot be required to state in advance what his succeeding evidence will be. Patterson v. Crouthcr, 70 Md. 124: Life Ins. Co. v. Dempsey, 72 Md. 288. When one's right to recover depends upon proving several facts, evidence as to any one of them is admissible irrespective of the order in which it is offered. Mills v. Bailey, 88 Md. 320; Taylor v. Stare, 79 Md. 130. Chap. II.] THE LAW OF EVIDENCE. 19 Pennsylvania. Relevancy. — Evidence (not hearsay) having any bearing on the question in issue is admissible. Pratt v. Ricliards Jewelry Co., 09 Pa. 53; Fehley v. Barr, 00 Pa. 19(3: Trego v. Lewis, 58 Pa. 46;]; Stafford v. Henry, 51 Pa. 514; Tarns v. Lewis, 42 Pa. 402; Tams v. Bullitt, 35 Pa. SOS; Rodgers v. Stophel, 32 Pa. Ill: ffiH v. £co^, 12 Pa. 168; Lightner v. Wike, 4 S. & R. 203; Reigart v. Ellmaker, 10 S. & R. 27. Irrelevant evidence not admissible. Tams v. Lewis, 42 Pa. 402; Bratton v. Mitchell, 3 Pa. 44; Spence v. Spence, 4 Watts. 105; Miller v. Frazier, 3 Watts, 456; /fe^er v. Lei&, 1 P. & W. 220; Battel/ v. Bailey, 14 S. & R. 195; Stewart v. Huntingdon Bank, 11 S. & R. 267; Leeds v. Com., S3 Pa. 453. If facts are not relevant to the issue they are not admissible, even though other facts might be inferred from them which would support the issue. Weidler v. Bank, 11 S. & R. 134; Kocher v. Bow- man, 10 Watts, 128. Party offering must show relevancy. — The party offering evidence must show its relevancy. Piper v. White, 56 Pa. 90. Latitude in fraud. — Great latitude is allowed in the admission of evidence on a question of fraud. Paul v. Kunz, 195 Pa. 207; Snay- berger v. Fahl, 195 Pa. 336. Assurance of counsel as to relevancy. — Evidence may be admitted in the discretion of the judge on the statement of counsel that its relevancy will later appear. No exception lies to the exercise of such discretion. Weidler v. Bank; 11 Serg. & R. 134. Instances. — Testimony in contradiction of a witness' statements is admissible to discredit him, even though such statements were im- material. Batdorff v. Bank, 61 Pa. 179. Any evidence which tends to impeach the credibility of a witness | is relevant. Magellan v. Thompson, 9 W. & S. 54. To establish defense of insanity the prisoner's mental condition, before and after the act, is admissible. Com. v. Gerade, 145 Pa. 289. Circumstantial evidence rendering the fact in issue more or less probable is relevant. Johnson v. Com., 115 Pa. 369. To prove a forgery, practice copies of the signature made by the supposed forger are relevant. Pennsylvania Co. for Insurance v. Railroad Co., 153 Pa. 160. On question of forgery of a bill, evidence that at about the time 20 A DIGEST OF [Part I. the bill is dated the signer tried to borrow money is relevant. Stevenson v. Steward, 11 Pa. 307. Where the date of a receipt is in issue, the time the money was actually received is relevant. Armstrong v. Burrows, G Watts, 26G. Conviction for manslaughter irrelevant in ejectment. Painter v. Drum, 40 Pa. 467. Evidence to show how facts might have existed hypothetically is not admissible. Hart v. Evans, 8 Pa. 13. On cross-examination. — Irrelevant questions are permissible in the discretion of the court on cross-examination for testing the ac- curacy of the witness. Clark v. Church, 5 W. & S. 266. Last paragraph. — Nevling v. Com., 98 Pa. 322. Article 3. relevancy of facts forming part of the same transaction as the facts in issue. A transaction is a group of facts so connected together as to be referred to by a single legal name, as a crime, a contract, a wrong or any other subject of inquiry which may be in issue. Every fact which is part of the same transaction as the facts in issue is deemed to be relevant to the facts in issue, although it may not be actually in issue, and although if it were not part of the same transaction it might be excluded as hearsay. Whether any particular fact is or is not part of the same transaction as the facts in issue is a question of law upon which no principle has been stated by authority and on which single judges have given different decisions. When a question as to the ownership of land depends on the application to it of a particular presumption capable of being rebutted, the fact that it does not apply to other Chap. II.] THE LAW OF EVIDENCE. 21 neighbouring pieces of land similarly situated is deemed to be relevant. Illustrations. (a) The question was, whether A murdered B by shooting him. The fact that a witness in the room with B when he was shot, saw a man with a gun in his hand pass a window opening into the room in which B was shot, and thereupon exclaimed, " There's butcher ! " (a name by which A was known), was allowed to be proved by Lord Campbell, L. C. J.i (6) The question was, whether A cut B's throat, or whether B cut it herself. i R. v. Fowkes, Leicester Spring Assizes, 1856. Ex relatione O'Brien, Serjt. In the report of this case in the Times for March 8, 1856, the evidence of the witnesses on this point is thus given: — " William Fowkes: My father got up [? went to] the window, and opened it and shoved the shutter back. He waited there about three minutes. It was moonlight, the moon about the full. He closed the window but not the shutter. My father was returning to the sofa when I heard a crash at the window. I turned to look and hooted, ' There's butcher.' I saw his face at the window, but did not see him plain. He was standing still outside. I aren't able to tell who it was, not certainly. I could not tell his size. While I was hooting the gun went off. I hooted very loud. He was close to the shutter or thereabouts. It was only open about eight inches. Lord Camp- bell: Did you see the face of the man? Witness: Yes, it was moon- light at the time. I have a belief that it was the butcher. I believe it was. I now believe it from what I then saw. I heard the gun go off when he went away. We hoard him run by the window through the garden towards the park." Upon cross-examination the witness said that he saw the face when he hooted and heard the report at the same moment. The report adds, " The statement of this witness was confirmed by Cooper, the policeman (who was in the room at the time) except that Cooper saw nothing when William Fowkes hooted, ' There's butcher at the window! '" He stated he had not time to look before the £un went off. In this case the evidence as to W. Fowkes's statement could not -22 A DIGEST OF [Pabt I. A statement made by B when running out of the room in which her throat was cut immediately after it had been cut was not allowed to be proved by Cockburn, L. C. J.2 (c) The question was, whether A was guilty of the manslaughter of B by carelessly driving over him. A statement made by B as to the cause of his accident as soon as he was picked up was allowed to be proved by Park, J., Gurney, B., and Patteson, J., though it was not a dying declaration within article 26.3 (d) The question is, whether A the owner of one side of a river owns the entire bed of it or only half the bed at a particular spot. The fact that he owns the entire bed a little lower down than the spot in question is deemed to be relevant- 4 (e) The question is, whether a piece of land by the roadside be- longs to the lord of the manor or to the owner of the adjacent land. "The fact that the lord of the manor owned other parts of the slip of land by the side of the same road is deemed to be relevant .5 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 108; Mc- Tvelvey on Evidence, p. 277 et seq.; Com. v. Hackett, 2 Allen (Mass.), 130; Hayncs v. Rutter, 24 Pick. (Mass.) 242; Com. v. McPike, 3 ■Cush. (Mass.) 181. The rule of the text is included under the rule that res gestce are admissible, that term being defined as " the circumstances, facts and be admissible on the ground that what he said was in the prisoner's presence, as the window was shut when he spoke. It is also obvious that the fact that he said at the time " There's butcher " was far more likely to impress the jury than the fact that he was at the trial uncertain whether the person he saw was the butcher, though he was disposed to think so. ?R. v. Bedingfield, Suffolk Assizes, 1879, 14 Cox C. C. 341. The propriety of this decision was the subject of two pamphlets, one by W. Pitt Taylor, who denied, the other by the Lord Chief Justice, who maintained it. 3 R. v Foster, 1834, 6 C. & P. 325. 'Jones v. Williams, 1837, 2 M. & W. 326. »Doe v. Kemp, 1831, 7 Bing. 332; 2 Bing. N. C. 102. €hap. II.] THE LAW OF EVIDENCE. 23 declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character." Stirling v. Buckingham, 46 Conn. 464, adopted in Pinney v. Jones, G4 Conn. 55, and Norwalk v. Ireland, G8 Conn. 14. A transaction is not ended so long as the parties to it remain to- gether, and anything, according to the usual course of proceeding, re- mains to he done. Fiftcld v. Richardson, 34 Vt. 410. Declarations or acts antecedent to the transaction, and conse- quently forming no part thereof, are inadmissible. Louisville & N. R. Co. v. Stewart, 56 Fed. R. SOS, G C. C. A. 147, 9 U. S. App. 564; Young v. Keller, 16 Mo. App. 550. The whole of a transaction is admissible. Ins. Co. v. Moseley, 8 Wall. (U. S.) 379, 405; Vicksburg & Meridian R. R. Co. v. O'Brien, 119 U. S. 99, 105; Peabody v. Dewey, 153 111. 657; Ward v. White, 8G Va. 212, 19 Am. St. Rep. 8S3; People v. Vernon, 35 Cal. 49, 95 Am. Dec. 1; Augusta Factory v. Barnes, 72 Ga. 217, 53 Am. Rep. 83S. In determining the meaning of a deed, another deed, executed at the same time, between the same parties and relating to the same subject- matter, is admissible on the theory that the two form parts of one agreement. Simonds v. Shields, 72 Conn. 146. In an action against a steamboat company, for personal injuries, the plaintiff may show that after he was taken from the water the captain treated him in an inhuman manner. " It was competent for the plaintiff to prove the whole transaction.*' Hall V. Conn. River Steamboat Co., 13 Conn. 325. See also Thomas v. Beck, 39 Conn. 241. In a suit against a municipal corporation to recover damages for the obstruction of a way by digging, it may be proved as part of the res gestee, for whom those doing the work claimed to be working. Wiley v. Portsmouth, 64 N. H. 214, 9 Atl. 220. Narration of past events. — A mere narration of past events, even though made soon after the transaction, is not admissible. Knox v. Wlirelock, 54 Vt. 150: Tabor v. Hardin, 9 Ky. Law Rep. 491 ; Travel- tr's Ins. Co. v. Sheppard, S5 Ga. 751, 12 S. E. IS: Hooper v. Carey, 86 la. 404. 53 X. W. 415: Rowland v. Phila.. W. d- B. R. R. Co.. G3 Conn. 419; Hayncs v. Rutter, 24 Pick. (Mass.) 242; Lane v. Bryant, 9 Gray (Mass.), 245; Eastman v. B. d M. R. R. Co., 165 Mass. 342. Authorities for first proposition of text. — Waldele v. A. 5*. C. R. R. Co., 95 N. Y. 274; People v. Davis, 56 N. Y. 91; Eighmy v. 24 A DIGEST OF, [Part I. People, 79 N. Y. 546; Finkelstein v. Barnett, 17 Misc. 564, 40 N. Y. Supp. 694, affirming 16 Misc. Rep. 488; Boardman v. Lake Shore & Michigan Southern Railroad Co., 84 N. Y. 157 ; People v. Zounek, 49 N. Y. St. R. 642, 10 N. Y. Crim. 251; Cassidy v. Uhlmann, 66 N. Y. Supp. 670, 54 App. Div. 205. The declarations to be admissible as part of the res gestce must accompany the act and so harmonize with it as to be obviously part of the same transaction. Moore v. Meach-am, 10 N. Y. 207, 210; Waldele v. N. Y. C. cG H. R. R. R. Co., 95 N. Y. 274; Eallahan v. New York, Lake Erie Railroad Co., 102 N. Y. 194. Patient's statement as to present condition. — In a trial for mur- der by poisoning, a physician, who was consulted by the deceased about thirty days before her death, may testify as to what she told him about her condition at the time, but not as to what she said about her previous symptoms. People v. Foglesong, 116 Mich. 556. Declaration and acts part of the res gestse. — In a case of trespass- to the person based upon the forcible removal of the plaintiff from property occupied by herself and husband as a homestead, a writ of assistance directed against the husband, under which the defendant acted, is admissible in evidence not as a justification, but as a part of the res gestae, and as bearing upon the question of damages. Haviland v. Chase, 116 Mich. 214. Receipts or stubs thereof may be admissible in connection with proof of the delivery of wheat as part of the res gestw. Frcese v. Arnold, 99 Mich. 13. In a suit against a street railway company for injuries re- ceived in a collision of an open car in the front of which the plain- tiff was riding, with the car ahead of it, evidence as to what was done by the people on the rear end of the forward car when they Baw the danger is admissible as part of the res gestae on the ques- tion of the plaintiff's contributory negligence in jumping from the car. Eolman v. Union Street R. Co., 114 Mich. 208. In an action for slander, evidence of an altercation so connected with the utterance of the alleged slanderous words as to form a part of the res gestae is admissible as bearing upon the question of malice. Provost v. Brueck, 110 Mich. 136. In an action for larceny the State may properly show that the respondent had his newspaper in one hand and the other was among the ladies' dresses feeling of their pockets, and that the witness called the attention of the officers to these movements. Chap. II.] THE LAW OF EVIDENCE. 25 causing the officers to watch the respondent. People v. Machen, 101 Mich. 400. In a suit for goods sold, the defendant defends upon the ground that a greater quantity than the amount agreed upon was fraudu- lently put in the written order of the defendant, and evidence of the conversation and of the circumstances surrounding the trans- action is admissible to prove the fraud. Shrimpton d- Sons v. Rosenbaum, 106 Mich. 68. It is competent to prove, for purposes of comparison, the weight and quality of wool shown to a witness by the defendant after the theft, and alleged to have been taken from his own sheep, such wool having been stored in the defendant's house, and where the stolen wool was afterwards proved to have been taken. People v. Pitcher, 15 Mich. 397. In an action for a personal injury, it is competent to show the entire surroundings of the place where the injury occurred. Le Beau v. Telephone, etc., Co., 109 Mich. 302. A defendant sued for assault and battery may show how he was dressed at the time. Kuney v. Butcher, 56 Mich. 308. It is error to exclude plaintiff's testimony, in an indecent as- sault upon woman, that the defendant approached her with un- chaste language, and had solicited sexual indulgence before the act was committed. Haicich v. Elsey, 47 Mich. 10. Habits. — When the plaintiff in an action for personal injuries makes a claim for damages on account of probable earnings subse- quent to the injury and it appears he was out of employment at the time he was hurt, evidence that for two or three years prior to the injury he had been in the habit of getting intoxicated, and that he had been proprietor of a hotel of bad reputation, is admis- sible and proper as bearing upon his probability of securing em- ployment, and the character and duration of the same. Kingston v. Ft. Wayne & E. R. Co., 112 Mich. 40. New Jersey. Res gestse denned and discussed. — Hunter v. State, 40 N. J. L. 495, 536. Declarations are admissible as part of res gestve only when con- comitant with the fact in issue and connected with it. Blackman v. Railroad Co., 68 N. J. L. 1. 26 A DIGEST OF [Part i. Contemporaneous statements. — Contemporaneous statements and writings characterizing and connected with acts which are in evi- dence are admissible. Luse v. Jones, 39 Is. J. L. 707; Frome v. Den- nis, 45 N". J. L. 515. Acts and statements at or near the time of the transaction in question are admissible if caused by such transaction. Hunter v. State, 40 jST. J. L. 495. A paper writing not signed held admissible as part of the res gestce to prove terms of a contract. Freeman v. Bartlett, 47 N. J. L. 33. Declarations of murdered man. — In trial for homicide the imme- diate declaration of the deceased as to the cause of his death re- ceived as part of the res gestae. Donnelly v. State, 26 N. J. L. 601. Declarations of the accused. — Declarations of an accused made at the time of the offense or immediately before or after it may be admitted. State v. Powell, 2 Hal. 244. Varying written contract. — Statements which are a part of the res gestos are not admissible to vary a written contract. Uhler v. Browning, 28 N. .J. L. 82. Words of bystanders. — In case of affray, acts and words of by- standers at the time are part of the res gestw and admissible. Cost- lier v. Sliker, 33 N. J. L. 95, 507. Instances. — Trespass. Ogden v. Gibbons, 2 South. 518, 536. Af- fray. Castner v. Sliker, 33 N. J. L. 95, 507. Sale and delivery of a horse. Guild v. Aller, 2 Harr. 310. Intention in establishing a residence or in removing. Likens v. Clark, 26 X. J. L. 207. Doings and sayings of an agent. Allen v. Bunting, 3 Harr. 299. Loaded shells found in the same room in which a murder was committed admissible as part of the res gestas. State v. Hill, 65 X. J. L. 627. Conduct. — Evidence of conduct to show mental condition as part of the res gestae. Schlemmer v. State, 51 X. J. L. 23. Instances where the statements were held not to be a part of the samo transaction: Ferguson v. Reeve, 1 Harr. 193; Snover v. Blair, 25 X. J. L. 94. Narrative of past events. — In case of homicide, a narrative of the affair by the deceased, given a few minutes after the defendant had left, is not part of the res gestae. Estell v. State, 51 N. J. L. 182. Accidents. — Declarations of plaintiff in action for negligence, made some time after the accident but while still lying where injured and suffering acutely, admitted. D., L. & W. Ry. Co. v. Ashley, 67 Fed. 209. Chap. II.] THE LAW OF EVIDENCE. 27 Words spoken by driver to the horse in a runaway admissible as part of the res gestae. Trenton P. R. Co. v. Cooper, 60 N". J. L. 219. Maryland. Time declarations were made. — Declarations of a sheriff offered as res gestce to affect a sale by him must have been made at the time of the sale. Miles v. Knott, 12 G. & J. 442. The circumstance to be proved may be part of one transaction even though it did not occur at the precise time when the principal fact occurred. Handy v. Johnson, 5 Md. 450. Declarations of a party after signing a bond that he signed it with the understanding that there was to be a cosurety are not admissible as res gestce. Miller v. State, 8 Gill, 141. Statements made by the accused a few minutes after a murder, when he had had opportunity for reflection, are not part of the res gestce. Wright v. State, 88 Md. 705. Statements by a patient to her physician which were mere narra- tive of what occurred before he arrived are not admissible. Hays v. State, 40 Md. 633. Declarations of agents. — Declarations by an agent made while transacting the principal's business and in connection therewith are admissible against the principal as part of the res gestce. Bradford v. Williams, 2 Md. Ch. 1; Thomas v. Sternheimer, 29 Md. 268; Franklin Bank v. Navigation Co., 11 G. & J. 28; Union Banking Co. v. Cil tings, 45 Md. 181. Letters as part of the res gestae. — GuAther v. Clarke, 67 Md. 18; Roberts v. Mattress Co., 46 Md. 374. Res gestae in assault and battery. — Byers v. Horner, 47 Md. 23. Other crimes. — Proof of other crimes forming part of the same transaction is admissible. Lamb v. State, 66 Md. 285. Reason for acting. — On trial for the abduction of children, the declarations of the mother at the time of leaving with the defendant that she was leaving voluntarily and was taking the children with her are admissible. Robinson v. State, 57 Md. 14. Fraud. — Statements of a grantor, at the time of executing the deed, that its object is to defraud creditors, are admissible as res gestce. McDowell v. Goldsmith, 2 Md. Ch. 370; Cooke v. Cooke, 29 Md. 538; Groff v. Rohrer, 35 Md. 327. In a suit to vacate a deed for fraud, the declarations of the grantor to the conveyancer are admissible. Sanborn v. Lang, 41 Md. 107. 28 A DIGEST OF [Part I. Accidents. — Declarations of the driver of a car half an hour after the accident are mere narrative and not admissible. Dietrich v. Halls Springs Ry. Co., 58 Md. 347. Statements made at a distance of several blocks from the scene of the accident are not res gestae. Baltimore v. Lobe, 90 Md. 310. When statements of parties concerned are part of the res gestae. B. d 0. It. R. Co. v. Allison, 62 Md. 479; B. & 0. R. R. Co. v. Good, 75 Md. 526. Pennsylvania. Res gestae defined. — Coll v. Transit Co., 180 Pa. 618; Van Eman v. Fidelity & Casualty Co., 201 Pa. 537. What are res gestae in homicide. O'Mara v. Com., 75 Pa. 424. Declarations of deceased admitted as res gestw in trial for murder. Com. v. Van Horn, 188 Pa. 143. Statements made at the time of the act are not res gestae unless they have a necessary relation to the transaction. In re Midler's Estate, 159 Pa. 590. Bystanders. — In case of affray, what was said or done by by- standers at the time is admissible as part of the res gestae. Walter v. Gernant, 13 Pa. 515. Time of declarations. — Declarations are not part of res gestae unless contemporaneous with the act done. Kidder v. Lovell, 14 Pa. 214; Banks v. Clegg, 14 Pa. 390; Grim v. Bonnell, 78 Pa. 152; Smith v. Emerson, 43 Pa. 456; Stauffer v. Young, 39 Pa. 455. Length of time after the event as affecting admissibility. Hester v. Com., 85 Pa. 139. Declarations made half an hour after an accident not part of the res gestae. Briggs v. Coal Co., 206 Pa. 564. No fixed measure of time or distance from the main occurrence can be established. Each case depends upon its own circumstances. Keefer v. Insurance Co., 201 Pa. 448. Declarations of agents of a railroad company made after an acci- dent not admitted as res gestae. Erie R. Co. v. Smith, 125 Pa. 259. Statements may be part of the res gestae though made before the act. Rinesmith v. Railway Co., 90 Pa. 262. Illustrations. — Statements made by one injured alighting from a train while he was still lying on the platform where he fell. Rail- road Co. v. Lyons. 129 Pa. 113. Declarations of workmen during a fire that it was caused by their negligence. Shafer v. Lacock, 168 Pa. 497. Chap. II. ] THE LAW OF EVIDENCE. 29 Declarations of an engineer, by whose negligence one was injured, made at the time of the injury. Hanover Ii. Co. v. Coyle, 55 Pa. 396. See also Mullan v. Steamship Co., 78 Pa. 25. Statements by one killed by an explosion made while covered with the lire. Elkins v. McKean, 79 Pa. 493. Declarations of an injured child not admitted because too long after the event. Bradford v. Downs, 126 Pa. 622. Declarations while wounds were being dressed after the crime held to be res gestae. Com. v. Werntz, 161 Pa. 591. In action for wife's services, her declarations during the service as to the terms thereof are admissible. Hackman v. Flory, 16 Pa. 196. Instructions to an agent to deliver a message are part of the res gestcB if the message was delivered. Featherman v. Miller, 45 Pa. 96. To show source of title, the correspondence with the business agent by whom the property was purchased is part of the res gestce. Han- nis v. Hazlett, 54 Pa. 133. Action for deceit in a horse trade — all the circumstances of the transaction are admissible. McLene v. Fullerton, 4 Yeates, 522. A record in a suit to which the defendant was not a party, as part of the res gestae. Patterson v. Anderson, 40 Pa. 359. Declarations of an agent at time of paying money as to the person for whom it is paid. Levering v. Rittenhouse, 4 Whart. 130. Article 4.* acts of conspirators. When two or more persons conspire together to commit any offence or actionable wrong, everything said, done, or written by any one of them in the execution or furtherance of their common purpose, is deemed to be so said, done, or written by every one, and is deemed to be a relevant fact as against each of them ; but statements made by individ- ual conspirators as to measures taken in the execution or * See Note III. 30 A DIGEST OF [Part I. furtherance of any such common purpose are not deemed to be relevant as such as against any conspirators, except those by whom or in whose presence such statements are made. Evidence of acts or statements deemed to be rele- vant under this article may not be given until the judge is satisfied that, apart from them, there are prima facie grounds for believing in the existence of the conspiracy to which they relate. Illustrations. (a) The question is, whether A and B conspired together to cause certain imported goods to be passed through the custom-house on payment of too small an amount of duty. The fact that A made in a book a false entry, necessary to be made in that book in order to carry out the fraud, is deemed to be a rele- vant fact as against B. The fact that A made an entry on the counterfoil of his cheque- book showing that he had shared the proceeds of the fraud with B, is deemed not to be a relevant fact as against B.6 (6) The question is, whether A committed high treason by imagin- ing the king's death; the overt act charged is that he presided over an organised political agitation calculated to produce a rebellion, and directed by a central committee through local committees. The facts that meetings were held, speeches delivered, and papers circulated in different parts of the country, in a manner likely to produce rebellion by and by the direction of persons shown to have acted in concert with A, are deemed to be relevant facts as against A, though he was not present at those transactions, and took no part in them personally. An account given by one of the conspirators in a letter to a friend, of his own proceedings in the matter, not intended to further the common object, and not brought to A's notice, is deemed not to be relevant as against AJ «J2. v. Blake, 1844, 6 Q. B. 126. 1 R. r. Hardy, 1794, 24 S. T. passim, but see particularly 451-3. Chap. II.] THE LAW OF EVIDENCE. 31 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed. ), sec. Ill; Mc- Kelvey on Evidence, p. 108; Logan v. U. 8., 144 U. S. 263; Brown v. U. 8., 150 U. S. 93; Walls v. State, 125 Ind. 400; Com. v. Tivnon, 8 Gray (Mass.), 375, 69 Am. Dec. 248; Com. v. Scott, 123 Mass. 235, 25 Am. Rep. 81; Com. v. Smith, 151 Mass. 491; Com. v. Crownin- shield, 10 Pick. (Mass.) 497; Com. v. Brown, 14 Gray (Mass.), 419; Com. v. Waterman, 122 Mass. 43. Authorities on the first paragraph of the text. — State v. Soper, 16 Me. 293, 33 Am. Dec. 665; Aldrich v. Warren, 16 Me. 465; Lee v. Lamprey, 43 N. H. 13; Jacobs v. Shorey, 48 N. H. 100; 9T Am. Dec. 586; Jeune v. Joslyn, 41 Vt. 478; Coioles v. Coe, 21 Conn. 235; State v. Glidden, 55 Conn. 78, 79; Knower v. Cadden Clothing Co., 57 Conn. 222; &*a*e v. Thompson, 69 Conn. 720; Stafe v. Shields, 45 Conn. 263. The evidence described in this article comes in as part of the res gestae. State v. Soper, 16 Me. 293, 33 Am. Dec. 665. Subsequent statements as to measures. — The rule of the text as to statements made subsequently by individual conspirators, as to measures taken, is supported by State v. Larkin, 49 N. H. 39; Com. v. Ingraham, 7 Gray (Mass.), 46; Moore v. Shields, 121 Ind. 267; Samples v. State, 121 111. 547. Acts done after the purpose of the conspiracy has been accom- plished may be admissible. Com. v. Scott, 123 Mass. 235, 25 Am Rep. 81. Civil and criminal cases. — The rule of this article applies to both civil and criminal cases. Knower v. Cadden Clothing Co., 57 Conn. 222; Lowe v. Dalrymple, 117 Pa. St. 564; Beeler v. Webb, 113 111. 436; People v. Parker, 67 Mich. 222; Goins v. State, 46 Ohio St. 457. Common purpose. — The things must have been said, done or written in the execution or furtherance of the common purpose. Knower v. Cadden Clothing Co., 57 Conn. 222; State v. McGee, 81 la. 17. The time when any one became a conspirator is immaterial ; he is thereafter deemed a party-conspirator to all acts done by any con- spirator in furtherance of the common purpose. U. S. v. Johnson, 26 Fed. Rep. 682; Bonner v. State, 107 Ala. 97. 32 A DIGEST OF [Part I. Conversations between A and B, during the pendency of the crim- inal enterprise, although after the doing of the act which the parties conspired to commit, is admissible against C, the other conspirator, in a trial for conspiracy. Com. v. Smith, 151 Mass. 491. See also Com. v. Croicninshield, 10 Pick. (Mass.) 497; Com. v. Brown, 14 Gray (Mass.), 419; Com. v. \v aterman, 122 Mass. 43. Preliminary proof. — The rule of the text as to preliminary proof of the conspiracy is supported by Knoicer v. Cadden Clothing Co., 57 Conn. 222. As to last statement of text, see Nudd v. Barrows, 91 U. S. 426; Spies v. People, 122 111. 1, 3 Am. St. Rep. 320; Logan v. U. S., 144 U. S. 263, 309; Am. Fur Co. v. U. S., 2 Pet. 358, 365; Lincoln v. ClapZin, 7 Wall. 132, 139; Lent v. Shear, 55 N. E. 2, 160 N. Y. 462. Judgment (Sup. 1897), 46 N. Y. Supp. 1095, reversed. Ormsby v. People, 53 N. Y. 472. The existence of the common purpose is primarily to be passed upon by the court, for the purpose of deciding on the admissibility of the evidence, but is ultimately for the jury. Com. v. Broivn, 14 Gray (Mass.), 419; State v. Thompson, 69 Conn. 729. The court must be satisfied that there is sufficient evidence to war- rant the jury in finding a combination. Coicles v. Coe, 21 Conn. 234; Knower v. Cadden Clothing Co., 57 Conn. 223 ; State v. Thompson, 69 Conn. 720. Reason of the rule. — The evidence comes in as part of the res gestce. Deicey v. Moyer, 12. N. Y. 70; Garnsey v. Rhodes, 138 N. Y. 461. Statements by conspirators. — People v. McKane, 143 N. Y. 455. New Jersey. Conspiracy denned. — Johnson v. State, 26 N. J. L. 321. General authority.— After a combination to commit a fraud has been proved, statements made by one are admissible against the others though not present. Patton v. Freeman, Coxe, 113. If one joins with other conspirators after they have partly con- summated their plans, he adopts their prior acts and declarations. Stewart v. Johnson, 3 Harr. 87. A paper written by one conspirator and signed only by the others is admissible. State v. Preston, 1 N. J. L. J. 117. Counterfeiters. — Where there is concert among counterfeiters, the act of one in carrying out their design is evidence against the others, Chap. II.] THE LAW OF EVIDENCE. 33 and possession of counterfeit money by one is the possession of the others. State v. TomUn, 29 X. J. L. 13, 24. Actions to set aside conveyances to defraud creditors. — Stewart v. Johnson, 18 N. J. L. 87. Declarations of the particeps criminis in adultery are not admis- sible. Doughty v. Doughty, 32 N. J. Eq. 32; Berckmans v. Berck- mans, 16 N. J. Eq. 122. Maryland. Conspiracy. — The fact of conspiracy must be prima facie estab- lished to the satisfaction of the judge, and thereupon acts and dec- larations of each conspirator in pursuance of their plan are admis- sible against the others. Bloomer v. State, 48 Md. 521. Two persons having conspired to commit a crime, statements and letters by one in furtherance thereof are admissible against both. Hays v. State, 40 Md. 633. Pennsylvania. General rule. — Hinckman v. Richie, Brightly 143; Weil v. Cohn, 4 Pa. Super. Ct. 443; Com. v. Eberle, 3 S. & R. 9; Hartman v. Diller, 62 Pa. 37; Heine v. Com., 91 Pa. 145. An overt act by one conspirator is admissible against the others. Com. v. O'Brien, 140 Pa. 555. After having proved a concert to commit burglary, it is permis- sible to prove a conversation between one of the conspirators and the person whose house was invaded whereby the information upon which all three acted was obtained. Com. v. Biddle, 200 Pa. 640. Conspiracy having been shown, every act and word of each con- spirator in carrying out the scheme is admissible against the others. Com. v. Kirkpatrick, 15 Leg. Int. 268; Burns v. McCabe, 72 Pa. 309. Declarations of confederates made in prisoner's presence just prior to the murder are admissible against him. Com. v. Bubnis, 197 Pa. 542. Preliminary proof. — The existence of the conspiracy must be shown prima facie before the rule applies. Com. v. O'Brien, 140 Pa. 555: Com. v. Zmm, 16 Pa. Super. Ct. 588; Donnelly v. Com., 6 Wkly. Notes Cas. 104; Marshall v. Fadclis, 199 Pa. 397. The community of purpose must be shown by evidence other than the acts or statements of one. Benford v. Sanner, 40 Pa. 9 ; Helser v. McGrath, 58 Pa. 458. 3 34 A DIGEST OF [Past I. But only slight evidence is required. McDowell v. Russell, 37 Pa. 164; Scott v. Baker, 37 Pa. 330. Declarations after the fact. — Declarations of one conspirator made after the consummation of their object are not admissible against the others. Wagner v. llaalc, 170 Pa. 495; Heine v. Com., 91 Pa. 145. The admissions of one conspirator after the purpose has been car- ried out are not admissible against the others. Com. v. Kirkpat- rick, 15 Leg. Int. 268; Benford v. Sanner, 40 Pa. 9. Civil and criminal cases. — The rule of this article applies to both civil and criminal cases. Loioe v. Dalrymple, 117 Pa. 564. Combinations to defraud. — Where a combination to defraud ci-ed- itors has been shown, the statements of any one in the combination are evidence against the others. McKee v. Gilchrist, 3 Watts, 230; Jackson v. Summerville, 13 Pa. 359; McCaskey v. Graff, 23 Pa. 321; Eelsey v. Murphy, 26 Pa. 78; Dealers v. Temple, 41 Pa. 234; Brown v. Parkinson, 56 Pa. 336; Confer v. McNeal, 74 Pa. 112. Where the garnishee and principal debtor are shown to have made a fraudulent combination, statements of one are admissible against the other. Palmer v. G-ilmore, 148 Pa. 48; Sommer v. G-ilmore, 160 Pa. 129. Article 5.* TITLE. When the existence of any right of property, or of any right over property is in question, every fact which consti- tutes the title of the person claiming the right, or which shows that he, or any person through whom he claims, was in possession of the property, and every fact which consti- tutes an exercise of the right, or which shows that its exer- cise was disputed, or which is inconsistent with its existence or renders its existence improbable, is deemed to be rele- vant. Illustrations. (a) The question is, whether A has a right of fishery in a river. An ancient inquisitio post mortem finding the existence of a right * See Note IV.; see also Article 88 as to the proof of ancient deeds. Chap. II.] THE LAW OF EVIDENCE. 35 of fishery in A's ancestors, licenses to fish granted by his ancestors, and the fact that the licensees fished under them, are deemed to be relevant.8 (b) The question is, whether A owns land. The fact that A's ancestors granted leases of it is deemed to be relevant.9 (c) Th e question is, whether there is a public right of way over A'e land. The facts that persons were in the habit of using the way, that they were turned back, that the road was stopped up, that the road was repaired at the public expense, and A's title-deeds showing that for a length of time, reaching beyond the time when the road was said to have been used, no one had power to dedicate it to the public, are all deemed to be relevant.^ (d) The question is, whether A has a several fishery in a river. The proceedings in a possessory suit in the Irish Court of Chancery by the plaintiff's predecessor in title, and a decree in that suit quiet- ing the plaintiff's predecessor in his title, is relevant, as showing pos- session and enjoyment of the fishery at the time of the suit.* 1 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed. ), sees. 34, 53a; 1 Taylor on Evidence (Chamberlayne's 9th ed.), sec. 123; Abbott's Trial Evidence (2d ed.), p. 873. Boston v. Richardson, 105 Mass. 351; Gloucester v. Gaffney, 8 Allen (Mass.), 11; Berry v. Raddin, 11 Allen (Mass.), 577; Osgood 8 Rogers v. Allen, 1808, 1 Camp. 309. 9 Doe v. Pulman, 1S42, 3 Q. B. 622, 623, 626 (citing Duke of Bed- ford v. Lopes). The document produced to show the lease was a counterpart signed by the lessee. See post, art. 64. io Common practice. As to the title-deeds. Brough v. Lord Scars- dale, Derby Summer Assizes, 1865. In this case it was shown by a series of family settlements that for more than a century no one had had a legal right to dedicate a certain footpath to the public. 11 Neill v. Duke of Devonshire, 1882, L. R. 8 App. p. 135, and se« especially p. 147. 36 A DIGEST OF L^aet 1. v. Coates, 1 Allen (Mass.), 77; Brown v. Cantrell, 62 Ga. 257; Hayne v. Hermann, 97 Cal. 259, 32 Pac. 171. Evidence of the character indicated in the text is admissible as a part of the res gestce. Harriman v. Hill, 14 Me. 127; McDonald v. McDonald, 130 Ind. 603, 30 N. E. 286. On questions of title, declarations explanatory of acts of possession, and in disparagement of title, are admissible. Parker v. Marston, 34 Me. 380; Bennett v. Camp, 54 Vt. 30; Hobbs v. Cram, 22 N. H. 130; Blount v. Homey, 43 Mo. App. 644. Mere declarations in favor of title, not explanatory of any act by •one in possession, are not admissible. Smith v. Martin, 17 Conn. 401; Morrill v. Titcomb, 8 Allen (Mass.), 100; Osgood v. Coates, 1 Allen (Mass.), 77. The fact of executing a chattel mortgage may thus be shown. Chil- lingworth v. Eastern, Tinware Co., 66 Conn. 313. Statements, by one in possession of property, to the effect that it was his, and the fact that he offered to sell it, and repaired it at his own expense, are admissible on the question of title, being acts " while he was in the possession of it, which naturally and usually flow from and accompany the ownership of personal property." Avery v. dem- ons, 18 Conn. 309. Disputed boundaries. — As to what evidence is admissible to estab- lish boundary through wild land , see Hunt v. Jackson, 19 N. Y. 279. As to what evidence is admissible, to establish acquiescence in a practical location, see Ratcliffe v. Gray, 3 Keyes, 510, 4 Abb. Dec. 4. New Jersey. Judgments. — The existence of a judgment as a part of a chain of title may be shown even in controversies with third parties. Den. v. Hamilton, 7 Hal. 109. Boundaries. — Where a boundary is doubtful the practical con- struction of the deed by the parties is competent evidence. Haring v. Van Houten, 2 Zab. 01: Smith v. State, 3 Zab. 130; Stockham v. Browning, 18 N. J. Eq. 390. Acts of the parties. — Evidence of acts under a contract and ac- quiescence therein admitted to prove the existence of such contract. Veghte v. Raritan Co., 19 N. J. Eq. 142. Chap. II.] THE LAW OF EVIDENCE. 37 Maryland. Title. — To prove title in replevin acts of ownership over the prop- erty may be proved. Smith v. Wood, 31 Md. 293. Rolls and debt-books are admitted to prove possession. Carroll v. Norwood, 1 H. & J. 167; (liftings v. Hall, 1 H. & J. 14. A judgment is evidence as against anybody when it is a link in a chain of title. Barney v. Patterson, 6 Har. & J. 182; House v. Wiles, 12 G. & J. 338. Pennsylvania. Authorities.— Sailor v. Hertzog, 10 Pa. 296. Books and papers of the land-office are admissible to prove title. Goddard v. Gloninger, 5 Watts, 209; Struthers v. Reese, 4 Pa. 129; Dikeman v. Parrish, 6 Pa. 210; Vastbinder v. Wager, 6 Pa. 339: Str'unpflcr v. Roberts, 18 Pa. 283. Evidence that one insured certain goods is admissible to prove his title. Dicken v. Winters, 169 Pa. 126. In action for negligence, evidence of the receipt of insurance money for loss by fire is admissible to prove ownership, drier v. Sampson, 27 Pa. 183. A deed is admissible to show that one is in possession under color of title, even though no title whatever was conveyed by the deed itself. Dieze v. Fackler, 7 Phila. 220, 223; McCoy v. College, 5 S. & R. 254. The minutes of a canal company and its occupation of a canal for many years are admissible to prove its ownership. Canal Co. v. Loyd, 4 W. & S. 393. The seizure of specific property in execution by one holding a judgment is admissible to prove his want of title otherwise. War- ner v. Scott, 39 Pa. 274. Assessment-books and tax receipts admissible on question of title. Irvin v. Patchin, 164 Pa. 51. The acts and declarations of the owner of personal property are admissible against those claiming under him. Caldwell v. Gamble, 4 Watts, 292. Judgments. — A judgment which is the basis of title to chattels is admissible. Martin v. Rutt, 127 Pa. 380. 38 A DIGEST OF [Part I. Article 6. CUSTOMS. When the existence of any custom is in question, every fact is deemed to be relevant which shows how, in particular instances, the custom was understood and acted upon by the parties then interested. Illustrations. (a) The question is, whether, by the custom of borough-English as prevailing in the manor of C, A is heir to B. The fact that other persons, being tenants of the manor, inherited from ancestors standing in the same or similar relations to them as that in which A stood to B, is deemed to be relevant. 12 ( b ) The question was, whether by the custom of the country a tenant-farmer not prohibited by his lease from doing so might pick and sell surface flints, minerals being reserved by his lease. The fact that under similar provisions in leases of neighbouring farms flints were taken and sold is deemed to be relevant. 13 AMERICAN NOTE. General. Authorities. — 2 Greenleaf on Evidence (15th ed.), sec. 252; Knoioles v. Dow, 22 N. H. 387, 403, 55 Am. Dec. 163; First Nat. Bank v. Goodscll, 107 Mass. 149; Morse v. Woodworth, 155 Mass. ^Muggleton v. Barnett, 1856, 1 H. & N. 282; and see Johnstone v. Lord Spencer, 1885, 30 Ch. Div. 581. It was held in this case that a custom might be shown by uniform practice which was not men- tioned in any custumal Court roll or other record. For cases of evi- dence of a custom of trade, see Ex parte Powell, in re Mathews, 1875, 1 Ch. D. 501 : and Ex parte Turquand, in re Parker, 1885, 14 Q. B. D. 636. See too the Notes on Wigglesworth and Dallison, in 1 Smith's Leading Cases. 13 Tucker v. Linger, 1882, L. R. 21 Ch. Div. 18; and see p. 37. Chap. II.] THE LAW OF EVIDENCE. 39 233, 29 N. E. 525; Chateaugay Ore cC- Iron Co. v. Blake, 144 U. S. 476; Governor v. Withess, 5 Gratt. (Va.) 24, 50 Am. Dec. 95; Adams v. Pittsburg Iron Co., 95 Pa. St. 348, 40 Am. Rep. 662. But see 27 Am. & Eng. Encyclopaedia of Law (1st ed.), p. 738. To prove that a note executed by C, as treasurer of a town, was the note of the town, — Held, that evidence was admissible of votes passed by the town, from time to time, during a long period of years, au- thorizing its treasurers to borrow money, for the use of tho town, and that the treasurers, under such votes, had generally given notes for the money borrowed, similar in form to that in question, which had always been paid by the town, by which also the treasurers' reports, mentioning these bonds, had always been accepted. Bank of New Mil- ford v. Neiv Milford, 36 Conn. 100. The purchaser of a cemetery lot from the person who laid out the cemetery received a deed, from the language of which it was uncertain whether a title to the adjoining, alleys passed or not. Held, that evi- dence was admissible in favor of the grantor that it was the custom in other cemeteries, both in the same town and elsewhere, for the orig- inal proprietors to have and retain the right of control, etc., over the alleys. Seymour v. Page, 33 Conn. 66. Trade Customs. — As to proving customs of trade or business, see Mathias v. O'Neill, 94 Mo. 520, 6 S. W. 253; Adams v. Pittsburgh Ins. Co., 95 Pa. St. 348, 40 Am. Rep. 662; Chateaugay Iron Co. v. Blake, 144 U. S. 476. One witness enough. — A usage may be established by one witness Robinson v. U. 8., 13 Wall. 363; Sawtelle v. Drew, 122 Mass. 228. New Jersey. Proof of business customs. — Ocean Beach Assn. v. Brinley, 34 N. J. Eq. 438. The custom of an individual. — A testator's custom of canceling notes by cutting off his signature admitted to prove cancellation of his will in a similar manner. Smock v. Smock, 11 N. J. Eq. 156. A factor's custom of entering in his books whether or not sales were guaranteed not admissible to prove that he did not guarantee a certain one. Park v. Miller, 27 N. J. L. 338. 40 A DIGEST OF [Part I. Trade customs. — Barton v. McKehcay, 2 Zab. 165; Steward v. Scudder, 4 Zab. 96; Schenck v. Griff en, 38 N. J. L. 463. Custom giving a partner the right to interest on advances made to the firm. Morris v. Allen, 14 N. J. Eq. 44. Maryland. Proof of custom. — A custom cannot be proved by the testimony of a single person who knows of but a single instance. Duvall v. Bank, 9 G. & J. 31. Question of fact. — Whether a custom exists is a question of fact for the jury. Burroughs v. Langley, 10 Md. 248; B. & 0. R. It. Co. v. Green, 25 Md. 72. A general business usage must be established as a fact and cannot be established by opinion evidence based upon a few instances in particular institutions. Bank v. Swain, 29 Md. 483. Personal custom. — One's personal custom as to drawing deeds not admitted. Pocock v. Hendricks, 8 G. & J. 421. Pennsylvania. Custom. — Proof of an isolated instance is not enough to prove a custom and notice thereof. Cope v. Dodd, 13 Pa. 33; Adams v. In- surance Co., 76 Pa. 411. A custom in violation of morality and law is not admissible Holmes v. Johnson, 42 Pa. 159. A custom in a city to permit water from the roofs to flow across pavements not admissible in action for damages caused by a fall. Brown v. White. 202 Pa. 297. One's custom of drawing notes differently when for different pur- poses admitted to show that a certain note was for goods sold. Snyder v. Wertz, 5 Whart. 163. Evidence of a custom contrary to the common law not received. Stoever v. Whitman, €> Binn. 416. Trade customs. — As to proving customs of trade or business, see Adams v. Pittsburgh Ins. Co., 95 Pa. 348. 40 Am. Rep. 662. Custom of trading between plaintiff and deceased is admissible to prove a completed sale. Cope's Estate, 191 Pa. 589. Chap. II.] THE LAW OF EVIDENCE. 41 Article 7. motive, preparation, subsequent conduct, explana- tory statements. When there is a question whether any act was done by any person, the following facts are deemed to be relevant, that is to say — any fact which supplies a motive for such an act, or which constitutes preparation for it ; 14 any subsequent conduct of such person apparently in- fluenced by the doing of the act, and any act done in conse- quence of it by or by the authority of that person. 15 Illustrations. (a) The question is, whether A murdered B. The facts that, at the instigation of A, B murdered C twenty- five years before B's murder, and that A at or before that time used ex- pressions showing malice against C, are deemed to be relevant as showing a motive on A's part to murder B.16 (6) The question is, whether A committed a crime. The fact that A procured the instruments with which the crime was committed is deemed to be relevant.17 (c) A is accused of a crime. The facts that, either before or at the time of, or after the alleged crime, A caused circumstances to exist tending to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed things or papers, or prevented the presence or procured the 14 Illustrations (a) and (6). 16 Illustrations (c) (d) and (e). 16 R. v . Clewes, 1830, 4 C. & P. 221. 17 i?. v. Palmer, 1856, printed report from Notes of Anglo Taylc and Gen. View, 230-272, passim. 42 A DIGEST OF [Paet I. absence of persons who might have been witnesses, or suborned per- sons to give false evidence, are deemed to be relevant. 18 (d) The question is, whether A committed a crime. The facts that, after the commission of the alleged crime, he ab- sconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, and the manner in which he conducted himself when statements on the subject were made in hi9 presence and hearing, are deemed to be relevant. 1 ^ (e) The question is, whether A suffered damage in a railway acci- dent. The fact that A conspired with B, C, and D to suborn false wit- nesses in support of his case is deemed to be relevant, 20 as conduct subsequent to a fact in issue tending to show that it had not happened. AMERICAN NOTE. General. Authorities. — Underbill on Evidence, sec. 9 ; McKelvey on Evi- dence, p. 146; 11 Am. & Eng. Encyclopaedia of Law (2d ed. ), p. 503 et seq. Motive. — Facts supplying a motive may be shown in connection with other evidence. State v. Palmer, 65 N. H. 216; Dodge v. Car- roll, 59 N. H. 237; State v. Watkins, 9 Conn. 52, 54; Com. v. Mc- Carthy, 119 Mass. 354; Com. v. Bradford, 126 Mass. 42; Com. v. Abbott, 130 Mass. "472; Com. v. Choate, 105 Mass. 451; Com. v. Hudson, 97 Mass. 565; Com. v. Vaughan, 9 Cush. (Mass.) 594; Scott v. People, 141 111. 195; Benson v. State, 119 Ind. 4S8; Tucker v. Tucker, 74 Miss. 93, 32 L. R. A. 623; State v. Glahn, 97 Mo. 679; Moore v. U. S., 150 U. S. 57; Alexander v. V. S., 138 U. S. 353. That the victim had been pressing the accused for payment of a debt is relevant, as showing motive, in a trial for murder. Com. y. Webster, 5 Cush. (Mass.) 295. 18 R. v. Patch, 1805, Wills Circ. Ev. (4th ed.) 239; R. v. Palmer, ub. sup. (passim) . 19 Common practice. 20 Moriarty v. London. Chatham and Dover Ry. Co., 1870, L. R. 5 Q. B. 314; compare Grey v. Redman, 1875, 1 Q. B. D. 161. Chap. II.] THE LAW OF EVIDENCE. 43 The fact of excessive insurance may be shown in the trial of the owner of a house, who is charged with unlawfully burning it, as it tends to supply a motive. Com. v. McCarthy, 119 Mass. 354; State v. Cohn, 9 Nev. 179. Evidence of motive must not be too remote. Com. v. Abbott, 130 Mass. 472. Threats. — Threats to do the act may be proved. Caverno v. Jones, CI X. H. 623; State v. Day, 79 Me. 120; State v. Bradley, G4 Vt. 466, 24 Atl. 1053; Mead v. Busted, 49 Conn. 337; State v. Boyt, 46 Conn. 330; State v. Bawley, 63 Conn. 49; State v. Kallaher, 70 Conn. 398; State v. Fry, 67 la. 475; People v. Eaton, 59 Mich. 559; Com. v. Bolmes, 157 Mass. 233; Com. v. Crowe, 165 Mass. 140. Remote and obscure allusions, by the accused, to the act in contem- plation are admissible on a criminal prosecution, as tending to show an existing disposition or design. State v. Boyt, 47 Conn. 538, 539. The threats of third persons are not admissible. State v. Beaudeaut, 53 Conn. 536. Preparation. — 'Acts of preparation may be proved. Com. v. Choate, 105 Mass. 451; Com. v. Blair, 126 Mass. 40; Com. v. Robinson, 146 Mass. 571, 16 N. E. 452; People v. Hope, 62 Cal. 291; Spies v. People, 122 111. 1 ; McManus v. Com., 91 Pa. 57. -\- tending to show whether a. horse was sold with or without a warranty, the advertisement of the sale is admissible. McGaughey v. Richardson, 148 Mass. 608. That the accused obtained the instruments with which the crime was committed may be proved. Com. v. Roach, 108 Mass. 289 ; Com. v. Blair, 126 Mass. 40. Malice. — Declarations showing 7nalice towards the victim are ad- missible. Mead v. Husted, 49 Conn. 337; State v. Boyt, 46 Conn. 330; Com. v. Goodwin, 14 Gray (Mass.), 55; Com. v. Bolmes. 157 Mass. 233. Statement of intention. — And so is a declaration of intention to do the act. Mills v. Sword Lumber Co., 63 Conn. 108. But a declaration that one will not do a certain act is not admis- sible to show that he did not do it. Fowler v. Madison, 55 N. H. 171. Sustaining text. — Elwell v. Russell, 71 Conn. 462. Subsequent conduct. — The making of false statements after the al- leged act, which would tend to give a wrong impression concerning the connection of the one sought to be held accountable with the act, may be shown. State v. Reed, 62 Me. 129; State v. Benner, 64 Me. 267; 44 A DIGEST OF [Part I. Com. v. Webster, 5 Cush. (Mass.) 316, 52 Am. Dec. 711; Com. v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. It. A. 235; State v. Meed, 62 Me. 129. And so may the fabrication of evidence. State v. Williams, 27 Yt. 226; Lyons v. Lawrence, 12 111. App. 53; Heslop v. Heslop, 82 Pa. 537. And efforts to secure the absence of witnesses. State v. Barron, 37 Vt. 57; State v. Nocton, 121 Mo. 537; and attempts to bribe a juror. Hastings v. Stetson, 130 Mass. 76; Taylor v. Oilman, 60 N. H. 506; or to escape justice. /State v. Frederic, 69 Me. 400; State v. Palmer, 60 N. H. 216, 20 Atl. 6; Hickory v. 17. S., 160 U. S. 408. The subsequent conduct of the alleged victim may also be shown, e. g., in assault with intent to procure an abortion. State v. Lee, 69> Conn. 186. Willingness or unwillingness to be searched may be shown. Riley v. Gourley, 9 Conn. 161. The accused, in order to meet evidence that he gave a false account of himself, cannot show that on other occasions he gave a true account. Com. v. Goodwin, 14 Gray (Mass.), 55. Hiding or flight after the act, to avoid arrest, may be proved. Com. v. Annis, 15 Gray (Mass.), 197; Corn. v. Tolliver, 119 Mass. 312; Com. v. Brigham, 147 Mass. 414; Authorities on the last proposition of the text. — Elwell v. Russell, 71 Conn. 462; Jewell v. Jewell, 1 How. (U. S.) 219, 232; Morris v. French, 106 Mass. 326; Banfield v. Whipple, 10 Allen (Mass.), 27; Hitchum v. State, 11 Ga. 615, 621; Taylor v. Gilman, 60 N. H. 506; Lovell v. Briggs, 2 N. H. 218. In a civil case the conduct of anv one naturally influenced by the al- leged act may be shown. Thus the question being whether a gift was made, the conduct of the alleged donee may be shown. Brown v. Butler, 71 Conn. 582. Evidence of repairs after an accident has been held irrelevant on the issue of negligence. A., T. & S. F. R. R. Co. v. Parker, 53 Fed. Rep. 595, and cases cited. Evading arrest. — It is competent to show that the accused at- tempted to evade the officers. People v. Taylor, 3 N. Y. Cr. 297. Fabricating evidence. — That one has attempted to fabricate evi- dence for the purposes of defense may be shown. People v. Bass- ford, 3 N. Y. Cr. 219. Bribing witnesses. — It is competent to show that an agent of a party employed to collect testimony and interview witnesses has Chap. II.] THE LAW OF EVIDENCE. 45 resorted to bribery even though he was not expressly authorized to employ such means. Nowack v. Metropolitan St. Ry. Co., 166 N. Y. 433, 60 N. E. 32, reversing 66 N. Y. Supp. 533. Evidence of bribery while admissible is not conclusive. It is proper to warn the jury not to give undue importance to su<-'h testi- mony. Nowack v. Metropolitan St. Ry. Co., 166 N. Y. 433, 60 N. E. 32, reversing 66 N. Y. Supp. 533. False or evasive testimony. — Falsehood and evasion by the ac- cused are proper evidence upon the question of his guilt or inno- cence. People v. Conroy, 97 N. Y. 62, 80, 2 N. Y. Cr. 565, 33 Hun, 119. New Jersey. Motive. — To prove motive in trial for homicide the State may prove how much money deceased had. Donnelly v. State, 20 N. J. L. 610. To show motive for murder the Stair may prove that the defend- ant and the wife of the deceased occupied the same room for two nights shortly after the murder. Stale v. Abbatto, 04 N. J. L. 658. Intoxication may be shown on the question of intent or premedi- tation. State v. Walker, 7 N. J. L. J. 80; State v. Agnew, 10 N. J. L. J. 105. Preparation. — -Statements in preparation for an act are admis- sible with proof of the act. Hunter v. State, 40 N. J. L. 538. Subsequent declarations. — Only when part of the res gestae may subsequent declarations be introduced to explain a declaration against interest. Guild v. Alter, 17 N. J. L. 310. Failure to testify. — Failure of an accused to become a witness may be considered by the jury- Parker v. State, 61 N. J. L. 308. Failure to call witness. — Failure to call an alleged paramour to testify, although within easy reach, is significant of guilt. Blbby v. Bibby, 33 N. J. Eq. 56. Nonproduction of evidence. — Nonproduction of material documents in one's possession raises a presumption against the possessor. Eckel v. Eckel, 49 N. J. Eq. 587. Voluntary destruction of an instrument raises a presumption that it was unfavorable to party doing the act. Jones v. Knauss, 31 N. J. Eq. 609. Threats. — State v. Agnew, 10 N. J. L. J. 165. Uneommunicated threats of the deceased not admissible to sup- port the claim of self-defense. State v. Zellers, 7 N. J. L. 220. 46 A DIGEST OF [Pabt I. Maryland. Intention. — One may testify as to his own intention where it is relevant. Phelps v. Georges Greek Go., CO Md. 536. No evidence as to one's intention is permitted when the law raises a conclusive presumption concerning it from the acts themselves. Lineweaver v. Slagle, 64 Md. 465. One may testify as to his motive for doing a certain thing where intention is material. Trader v. Lowe, 45 Md. 1. Declarations of one accused of murder made before the crime are admissible to prove intent. State v. Ridgely, 2 Har. & McH. 120. Evidence to show the motives and intentions of the parties and the real nature of a transaction is admissible. Threats and artifice. Cook v. Carr, 20 Aid. 403. Threats. — Threats and the purchase of ammunition by the de- ceased are not admissible on behalf of the accused when he did not know of either. Turpin v. State, 53 Md. 462. State of mind in homicide. — The State may show that the accused was armed and vindictive shortly before the homicide. Kernan v. State, 65 Md. 253. Malice. — To prove malice in an action for slander, letters written by defendant to plaintiff, though not published, are admissible. Gambrill v. Schooley, 95 Md. 260. Motives of outsiders. — The motives of a third party who induced a witness for the State to leave the State for a bribe are not admis- sible. Chelton v. State, 45 Md. 560. Failure to testify. — Failure to testify when accused of fraud raises a presumption against one. Dawson v. Waltemeyer, 91 Md. 328. The prosecuting attorney may comment to the jury on the failure of the accused to deny as a witness the allegations of the State. Brashears v. State, 58 Md. 563. Proving a fact by inferior evidence when better evidence is in the possession of the party warrants an inference that the latter would not be in favor of his contention. Insurance Co. v. Evaiuis, 9 Md. 1. Criminal cases. — Refusal or neglect of a defendant in a criminal prosecution to testify raises no presumption against him. P. G. L. 1888, art, 35, § 3. Preparation. — Proposition made by defendant to take an unfre- quented path is admissihle as showing preparation to commit a crime: it may he shown also that defendant had a pistol. Garlitz v. State, 71 Md. 293. Chap. II.] THE LAW OF EVIDENCE. 47 Pennsylvania. Motive. — Jealousy as motive for murder. McC'ue v. Com., 78 Pa. 185; Com. v. McManus, 143 Pa. 64. Other motives for murder. Ettinger v. Com., 98 Pa. 338; Sayres v. Com., 88 Pa. 291. The adiuissiou by defendant of one adequate motive does not prevent proof of another by the State. Com. v. Spink, 137 Pa. 255. Evidence to show that motive for murder was to secure life insur- ance held admissible. Com. v. Clemmer, 190 Pa. 202. Evidence that defendant was a " Molly Maguire " is competent to show motive for murder. Can-oil v. Com., S4 Pa. 107 ; Campbell v. Com., 84 Pa. 187; McManus v. Com., 91 Pa. 57; Hester v. Com., 85 Pa. 139. Where a question relates to conduct, evidence as to motives, feel- ing, and natural instincts is admissible. Allen v. Willard, 57 Pa. 374. In murder trial, evidence of the relation between accused and deceased's wife is admissible to show motive. Com. v. Fry, 198 Pa. 379; Com. v. Ferrigan, 44 Pa. 386; Turner v. Com., S6 Pa. 54. Possession by the defendant of property obtained by the crime is admissible. Brown v. Com., 76 Pa. 319. Preparation. — -Acts of preparation may be proved. McManus v. Com., 91 Pa. 57. Subsequent conduct. — ■ Subsequent conduct showing consciousness of guilt is admissible. McCabe v. Com., 8 Atl. 45. To show a purpose or design to hinder, delay, or defraud creditors in making a conveyance, declarations of the grantor subsequent to the conveyance are admissible. Boyer v. Weimer, 204 Pa. 295. Subsequent conduct to prove a conspiracy. Respublica v. Hevice, 2 Yeates, 114. In action for crim. con. after giving evidence of adultery prior to separation subsequent adultery may be proved. Slierioood v. Til- man, 55 Pa. 77. Subsequent explanatory acts. Reigart v. Ellmaker, 10 S. & R. 27. The State may prove the circumstances of making the arrest, in- cluding the fact that the defendant killed one of the officers. Com. v. Biddle, 200 Pa. 647. Flight is evidence of guilt. Com. v. Boschino, 176 Pa. 103. Subsequent precautions. — Precautions taken after an accident not admissible to prove prior negligence. Elias v. Lancaster, 203 Pn. 636; Baran v. Read. Iron Co., 202 Pa. 274; Hagar v. Wharton Twp., 200 Pa. 281. 48 A DIGEST OF [Part I. Jn an action for damages caused by falling into a culvert, evidence showing that the culvert was repaired after the accident is not ad- missible. Fisher v. Railroad Co., 1S2 Pa. 457. In action for negligence at u crossing it is allowable to show that the defendant shortly after erected gates there. Lederman v. Penn- sylvania R. Co., 165 Pa. 118. Fabrication of evidence. — Fabrication of evidence indicates guilt. McMeen v. Com., 114 Pa. 300; Com. v. Twitchell, 1 Brewst. 551; Heslop v. Heslop, 82 Pa. 537. it is admissible for one to show that the adverse party at a pre- vious trial of the case attempted to suborn perjury and corrupt the jury. McHugh v. McHugh, 186 Pa. 1U7. A plaintiff may be asked on cross-examination whether he did not at a previous trial of the case attempt to influence the jury cor- ruptly. Beck v. Hood, 185 Pa. 32. False statements as to what defendant did with his child are ad- missible to prove its murder. Com. v. Johnson, 162 Pa. 63. Attention of jury may be called to contradictory statements of a prisoner in relation to the crime. Caihcart v. Com., 37 Pa. 108. Evidence that insured died of consumption in 1900 is admissible to prove that he made false statements in his application in 1899. Murphy v. Insurance Co., 205 Pa. 444. Failure to produce testimony. — Failure to produce evidence is not necessarily suppression thereof. McCaoe v. Com., 8 Atl. 45. Xo presumption as to what a witness' testimony would be from failure to call him. Com. v. McMahon, 145 Pa. 413. Flight. — Flight of a person charged with crime may be considered as indicating guilt. Com. v. McMahon, 145 Pa. 413; Com. v. Roland, 8 Phila. 606. Threats.— A threat to rob is admissible on a trial for murder. Com. v. Farrell, 187 Pa. 40S. Threats and flight to show murder. Com. v. Saiyards, 158 Pa. 501. Uncommunieated threats are admissible to show motive and in- tention. Com. v. Keller, 191 Pa. 122. Threats made by defendant to kill A are not admissible on his trial for the killing of B. Ahernethy v. Com., 101 Pa. 322. Threats are admissible though not made directly against the de- ceased. Hopkins v. Com., 50 Pa. 9. Threats and the commission of a previous offense may be proved in trial for the murder of a policeman. Com. v. Major. 198 Pa. 290. Ability and opportunity. — Declarations indicating the defendant's ability to " shut anybody's wind off.'' Com. v. Crossmire, 156 Pa. 304. Chap. II.] THE LAW OF EVIDENCE. 49 Article 8.* statements accompanying acts, complaints, state- ments in presence of a person. Whenever any act may be proved, statements accompany- ing and explaining that act made by or to the person doing it may be proved if they are necessary to understand it. 21 In criminal cases the conduct of the person against whom the offence is said to have been committed, and in particular the fact that soon after the offence he made a complaint to persons to whom he would naturally complain, are deemed to be relevant. The terms of the complaint are irrelevant ; except that in a case of rape or other sexual offence where the consent of the person against whom the offence was com- mitted to the act charged as an offence is in issue, the terms of the complaint are relevant as showing that the conduct of such person was consistent with the denial of consent. 22 When a person's conduct is in issue or is deemed to be relevant to the issue, statements made in his presence and hearing by which his conduct is likely to have been affected, are deemed to be relevant. 23 * See Note V. 21 Illustrations (a) and (6). Other statements made by such per- sons are relevant or not according to the rules as to statements here- inafter contained. See ch. iv. post. 22 R. v. Lillyman, [1896], 2 Q. B. 167; see Illustration (c) and the note thereto. 23 R. v. Edmunds, 1833, 6 C. & P. 164; Neil v. Jakle, 1849, 2 C. & K. 709. 4 50 A DIGEST OF [Past I. Illustrations. (a) The question is, whether A committed an act of bankruptcy, by departing the realm with intent to defraud his creditors. Letters written during his absence from the realm, indicating such an intention, are deemed to be relevant facts.24 (6) The question is, whether A was sane. The fact that he acted upon a letter received by him is part of the facts in issue. The contents of the letter so acted upon are deemed to be relevant, as statements accompanying and explaining such con- ducts (c) The question is whether A was ravished. The fact that shortly after the alleged rape, she made a complaint relating to the crime, and the terms of the complaint, and the cir- cumstances under which it was made, are relevant.26 The fact that, without making a complaint, she said that she had been ravished, is not deemed to be relevant as conduct under this article, though it might be deemed to be relevant (e. g.) as a dying declaration under article 26. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 108; 2 Tay- lor on Evidence ( Chamberlayne's 9th ed.), p. 39146, se c. 581; Under- bill on Evidence, sec. 52. Statements accompanying act. — Authorities on the first paragraph of the text. Hall v. Young, 37 N. H. 134; Garter v. Beals, 44 X. H. 408; Whittemore v. Wenticorth, 76 Me. 20; Lund v. Tynsborough, 9 Cush. (Mass.) 36, 41; Kingsford v. Hood, 105 Mass. 495; Place v. Gould, 123 Mass. 347; Milford v. Bellingham, 16 Mass. 10S: 24 Raivson v. Haigh, 1824, 2 Bing. 99; Bateman v. Bailey, 1794, 5 T. R. 512. 25 Wright v. Doe d. Tatham, 1837, 7 A. & E. 324-5 (per Denman, C. J.). 20 R. v. Lillyman, [1896], 2 Q. B. 167. The above illustration and that portion of the text which is founded on it, are intended to ex- press the decision in this case; but see Note V. as to the difficulties to which it has given rise. Chap. II.] THE LAW OF EVIDENCE. 51 Deoeney v. Baxter, 157 Mass. 9; Bank v. Kennedy, 17 Wall. 19, 24; McDowell v. Goldsmith, 6 Md. 319, 338, 61 Am. Dec. 305; Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22, n.; Bagly v. Massie, 38 Ala. 89, 79 Am. Dec. 82. In order that evidence be admissible as part of the res gestce the act which it characterizes, and of which it forms a part, must be ad- missible. Finney v. Jones, 64 Conn. 550, 42 Am. St. Rep. 209. Declarations made by one as he is leaving town, that he is going to a particular place for a particular purpose, are admissible in favor of his representatives, as a part of the res gestae. Douglas v. Chapin, 26 Conn. 92. Where the residence of one is in issue, a statement while travelling towards the place claimed on the trial as hts residence, that he " was going home " to B, is admissible. Neio Milford v. Sherman, 21 Conn. 112. In questions of domicil and the like, statements accompanying an act of removal are admissible. Fulham v. Hoioe, 62 Vt. 386 ; Deer Isle v. Winterport, 87 Me. 37; Rudd v. Rounds, 64 Vt. 432; Viles v. Waltham, 157 Mass. 542; Johnson v. Sherwin, 3 Gray (Mass.), 374. Declarations of one paying money are admissible on an issue in- volving the application to be made of the payment. Woodstock v. Clark, 25 Vt. 308. Where sanity is in question statements accompanying conduct are relevant. Foster's Exrs. v. Dickerson, 64 Vt. 233; Barbers Appeal, 63 Conn. 393. The question being where the commanding officers of a company of soldiers on a steamboat were, and what they were doing to keep order at the time of a disturbance on board, evidence was offered of a conversation between a sergeant and commissioned officer in the saloon, referring to the disturbance as then going on upon deck, and the action to be taken to quiet it. Held, to be admissible on the ques- tion at issue, and as part of the res gestae. Flint v. Norwich & New York Transp. Co., 7 Blatchf. 543-547 (U. S. Circuit Court) ; affirmed in 13 Wall. 3. Narrative of past events. — A narrative of past events is inadmis- sible. Cottison v. Cottison, 22 Pa. 375; Robinson v. State, 57 Md. 14. Compare Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285; Chicago, etc., R. Co. v. Chancellor, 165 111. 438; Baxter v. Camp, 71 Conn. 246. 52 A DIGEST OF [Pabt I. In an action for injuries caused by the bite of a dog, evidence of the declaration of the plaintiff that she had been bitten by the dog, made to her mother within five minutes of the injury, is but a nar- rative of a past event, and inadmissible as part of the res gestae. M'Carrick v. Kealy, 70 Conn. 642. Complaints. — The American authorities generally state the rule that the fact of complaint is relevant as applying only to prosecu- tions for rape and other offenses against women. American Law Review, vol. xiv, pp. S29-838; Hay lies v. Com., 28 Grata. (Va.) 942, and the authorities at the head of this note. In rape cases the fact of complaint may be shown. State v. Car- roll, 67 Vt. 477; Com. v. Phillips, 162 Mass. 504; Stevens v. People, 158 111. Ill; People v. Stewart, 97 Cal. 238; Cross v. State, 132 Ind. 65; Parker v. State, 67 Md. 329; Lee v. State, 74 Wis. 45; Johnson v. State, 17 Ohio, 593; Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366. A delay of weeks or months, if explained, does not render the fact of complaint inadmissible. State v. Wilkins, 66 Vt. 1. Nor does that of more than a year. It simply affects the weight of the evidence. State v. Byrne, 47 Conn. 465, 466, 467. The conduct of a woman subsequent to the commission of an al- leged abortion may be shown in a prosecution against one for per- forming the abortion. State v. Lee, 69 Conn. 196. Evidence of constancy in accusation is admissible. State v. De Wolf, 8 Conn. 99. Terms of complaint irrelevant. — The terms of the complaint are irrelevant. State v. Knapp, 45 N. H. 148, 155. In some States the converse of the rule of the text as to com- plaints in prosecutions for offenses against women has been held and the terms of the complaint are considered relevant. State V. Kinney, 44 Conn. 153. 26 Am. Rep. 436; Burt v. State, 23 O. St. 394; Hill v. State, 5 Lea (Tenn.), 725. See, also, Benton v. Starr, 58 Conn. 285. So where the complainant is a girl of tender years. Harmon v. State, 70 Wis. 448. Statements of others. — Authorities on the rule of the text that statements made in the presence of one are admissible. Johnson v. Day, 78 Me. 224. 3 Atl. 647; Morrill v. Richey, 18 N. H. 295; Ettin- ger v. Com., 98 Pa. 338; Watt v. People, 126 111. 9; Conway v. State, 118 Ind. 482; B. d W. R. R. Co. v. Dana, 1 Gray (Mass.), 83; Com. v. Call. 21 Pick. (Mass.) 515; Waldridge v. Arnold, 21 Conn. 424; Chap. II.] THE LAW OF EVIDENCE. 53 People v. Shea, 8 Cal. 538; Knowlton v. Clark, 25 Ind. 391; Friend v. Hamill, 34 Md. 298, 308. But see Mattocks v. Lyman, 16 Vt. 113\ The admissibility of statements made in the presence of a person under the last paragraph of the text, rests upon the theory that tacit acquiescence constitutes an admission. Johnson v. Day, 78 Me. 224 ; Proctor v. Old Colony R. R. Co., 154 Mass. 251. The rule applies when the statements charge the commission of a crime. State V. Reed, 62 Me. 129; Com. v. Galavan, 9 Allen (Mass.), 271; Com. v. Bailey, 134 Mass. 527. The rule does not apply where the circumstances are such that the person cannot speak, as where the statements are made in court. State v. Boyle, 13 R. I. 537; Martin v. Capital Ins. Co., 85 la. G43. But see Brainard v. Buck, 25 Vt. 573, 60 Am. Dec. 291. But if the person were subsequently called as a witness, and had an opportunity to reply, the rule of the text is applicable. Blanchard v. Hodgkins, 62 Me. 119. It has no application where a reply is not naturally called for. Oale v. Lincoln, 11 Vt. 152; Herscy v. Barton, 23 Vt. 685; Pierce's Admr. v. Pierce, 66 Vt. 369, 29 Atl. 364; Drury v. Hervey, 126 Mass. 519. If a reply is made it is admissible. Com. v. Trefethen, 157 Mass. 180. It does not apply where the person cannot hear or comprehend the statements. Tufts v. Charlestown, 4 Gray (Mass.), 537. Such evi- dence may go to the jury with the evidence showing that the state- ment was not heard. Mallen v. Boynton, 132 Mass. 443: Com. v. Sliney, 126 Mass. 49. It does not apply where the person has no knowledge of the inter- est affected by the claim of admission or of the facts. Ware v. Ware, 8 Me. 42; Robinson v. Blen, 20 Me. 109. Complaints and exclamations of pain. — Complaints of pain and distress, at the time of an alleged injury, are competent. Caldivell v. Murphy, 11 X. Y. 416, 1 Duer, 233; Were/;/ v. Prisons, 28 N. Y. 344; Matteson v. New York Central Railroad Co.. 35 X. Y. 4S7. 62 Barb. 364; Creed v. Eartman, 8 Bos. 123; Baker v. Griffin. 10 Bos. 140; Lewke v. Dry-Dock, East Broadway R. R. Co.. 46 Hun. 283: Powers v. West Troy, 25 Hun, 561. And so are statements to an attending physician. Cleveland v. Neio Jersey Steamboat Co.. 5 Hun, 523; Murphy v. New York Central Railroad Co.. GO Barb. 125. This has not been changed by the statute permitting the parties to be witnesses in their own behalf. Hagenlocher v. Coney Island R. R. Co., 99 X. Y. 136. 64 A DIGEST OF [Part I. Exclamations, " Take these splinters out of my leg! take these splinters out! " uttered immediately after the accident, are admis- sible, there being no splinters. West v. Manhattan Ry. Co., 10 N. Y. St. R. 886, 121 N. Y. 654. Res gestae. — Evidence may come in as part of the res gestae. Wilson v. Genseal, 113 111. 403, 405; Black v. Wabash, etc., Co., Ill 111. 3.51, 300; Harding v. Harding, 75 111. App. 590; Heahj v. People. 103 111. 372. Declarations are admissible if part of the res gestce. Paul y. Berry, 78 111. 158; Bushnell v. Wood, 85 111. 88; Caldwell v. Goioey, 85 111. 011; G. Accident Ins. Co. v. Gerrish, 163 111. 625; C. d E. I. /,'. R. Co. v. Chancelor, 165 111. 438, reversing 60 111. App. 525. Declarations admissible as res gestae may be in favor of the de- clarant. Oliphant v. Liversidge, 142 111. 160. Illustration of res gestae. — Statements made while doing an act are admissible as part of the res gestce. Medley v. People, 49 111. App. 218. Declarations by a person while going to a place are admissible on the issue of domicile. Matzenbaugh v. People, 194 111. 108, 62 N. E. 546. Statements while removing a fence may be admissible. Welch v. Louis, 31 111. 446, 458. The declarations of a lenant when making an entry may be admissible Hardisty v. Glenn, 32 111. 62. It is competent to prove the statement of the accused made when stolen properly was found in his possession. Bennett v. People, 96 111. 602. Statements accompanying payment may be admissible as res gestce. Rigg v. Cook, 4 Gilm. 336. The declarations of a grantor made at the time of making a deed may be admissible as res gestae. Lambe v. Manning, 171 111. 612, 49 N. E. .509. See also Penn. Co. v. McCaffrey, 173 111. 169, 50 N. E. 713. Entries made by bank officers on discounting and renewing a note are admissible as res gestce. Reynolds v. Summer, 120 111. 58. 05. Conduct of passengers on the occurring of an accident may be part of the res gestae. G. & C. U. R. R. Co. v. Fay, 16 111. 558. The existence of a common design may be part of the res gestce. Main v. McCarty, 15 111. 441. Chap. II.] TEE LAW OF EVIDENCE. 55 The books of a third party may be admitted when part of the res gestw (e. g., to show delivery). C. cG A 7 . Ry. Co. v. Ingersol, €5 111. 399. Letters which are part of the res gestae may be admitted. Laurence v. Laurence, 164 111. 367; Carter v. Carter, 152 111. 434: Wineberg v. Nessel, 56 111. App. 136. In a personal injury case, the speed of the train and the fact of ringing a bell are admissible as part of the res gestae. Chicago Q. T. Ry. Co. v. Kinnare, 76 111. App. 394. Statements of agents. — The statements of an agent may come in as res gestae. Suvimers v. H. 8. B. & Co., 50 111. App. 382; Pickett v. Madison County, 14 Brad. 454. Declarations of an agent while performing acts within the scope of his duty are admissible. Matzenbaugh v. People, 194 111. 108, 62 X. E. 546. The declarations of officials while doing acts in behalf of a cor- poration are part of the res gestae. Maher v. Chicago, 38 111. 266. Evidence of what the flagman did and said at the time of the accident may be competent as part of the res gestae. Penn. Co. v. Rudel, 100 111. 603. The mere fact that an agent makes an exclamation while doing his duty does not prove that it is within the scope of his duty. MogJc v. Chicago St. Ry. Co., 80 111. App. 411. As to declarations of an agent after the act, see D. & H. Canal Co. v. Mitchell, 92 111. App. 577; Druecker v. Sandusky Portland Cement Co., 92 111. App. 406. Rape. — -In rape cases the fact of complaint may be shown. Stevens v. People, 158 111. 111. Attending physicians may testify as to statements indicating sufferings and sensations. Salem v. Webster, 192 111. 369, 61 X. E. 323, affirming P5 111. App. 120. A physician present at the time of an accident may testify as to exclamations of pain. Salem v. Webster, 192 111. 369, 61 X. E. 323, affirming 95 111. App. 120. Expression of pain and declarations made at the time of a trans- action, or to a physician thereafter, are admissible. West Chicago St. Ry. Co. v. Carr, 170 111. 478, 48 X. E. 992, affirming 67 111. App. 530. 56 A DIGEST OF [Pabt I. Statements to a physician making an examination with a view to suit are not admissible, unless the examination was made by procurement of the opposite party. West Chicago St. Ry. Co. v. Carr, 170 111. 478, 48 N. E. 992, affirming G7 111. App. 530. Mere exclamations of pain the morning after the injury are inad- missible. West Chicago St. Ry. Co. v. Kennelly, 170 111. 508, 48 N. E. 996, affirming 66 111. App. 244. A physician may testify as to complaints when they are part of the res gestae. West Chicago St. Ry. Co. v. Kennelly, 170 111. 508, 48 N. E. 996, affirming 66 111. App. 244. Statements of one who is injured, to be admissible, must have been made at the time of the accident. C. W. D. Ry. Co. v. Becker. 128 111. 548; C, B. & Q. R. R. Co. v. Johnson, 36 111. App. 565. In a personal injury action, the statements of the victim at the time of the injury as to the nature of the injury are admissible. Springfield Consolidated Ry. Co. v. Hoeffner, 175 111. 634, 51 X. E. 884, affirming 71 111. App. 102. New Jersey. Statements accompanying act. — Contemporaneous writings and statements explaining evidential acts are also admissible. Luse v. Jones, 39 N. J. L. 707; Frome v. Dennis, 45 N. J. L. 515. Statements in one's presence. — A statement accusing another of homicide, made in his presence, under circumstances rendering a reply expedient and proper is admissible, as also is the silence of the accused. Donnelly v. State, 26 N. J. L. 601. Conversations in the presence of the defendant admissible against him. State v. Brown, 04 N. J. L. 414. Purpose on leaving home.— When an act is part of the res gestae statements explanatory thereof and concomitant therewith are ad- missible. Oral and written statements made on leaving home as to purpose and place of going admitted. Hunter v. Slate, 40 X. J. L. 495. Conduct while making a declaration. — The conduct of a person while making a dying declaration is admissible on the question of credibility. Donnelly v. State, 26 N. J. L. 465. Statements to physician. — Declaration- of a patient as to his symptoms made to his physician, not for purpose of treatment but to enable the physician to form an opinion for the purpose of testi- fying, are not admissible in favor of the declarant. Con. Traction Co. Chap. II.] THE LAW OF EVIDENCE. 57 v. Lambert son, 60 N. J. L. 452 ; D., L. & W. R. Co. v. Roalefs, 70 Fed. 21. Complaints. — The rule as applied to rape cases supported. State v. Ivins, 36 N. J. L. 233. Maryland. Statements accompanying act. — The true character and purpose of acts may be proved by the declarations accompanying them in point of time. McDowell v. Goldsmith, 6 Md. 319; Robinson v. State, 57 Md. 14; Curtis v. Moore, 20 Md. 93; New Windsor v. Stocksdale, 95 Md. 196. A statement by a person as to his purpose in going, made just before boarding a train, held admissible as part of the res gesta? in an action for damages against the railroad company for his death. B. d 0. R. R. Co. v. Chambers, 81 Md. 371. Complaint in rape. — In rape cases the fact of complaint may be shown. Parker v. State, 67 Md. 329. The details and circumstances of the rape cannot be proved by the declarations of the woman made after the injury. Parker v. State, 67 Md. 329. Narrative of past events. — A narrative of past events is inadmis- sible. Robinson v. State, 57 Md. 14. In breach of promise, the plaintiff may show that she communi- cated the fact of the engagement to her family. Lewis v. Tapman, 90 Md. 294. Statements of others.— Authority on the rule of the text that statements made in the presence of one are admissible. Friend v. Hamill, 34 Md. 298, 308. Declarations by a wife in her husband's presence as to why a de- posit was made in their joint names are admissible on the question of ownership. Taylor v. Brown, 65 Md. 366. Pennsylvania. Statements accompanying acts. — One's statements of intention at the time of making a settlement are admissible. Bennett v. Hether- ington, 16 S. & R. 193; Jones v. Brownfield, 2 Pa. 55. Declaration of one when taking possession admitted to show that the possession was adverse. Miles v. Miles, 8 W. & S. 135. Conversation at the time of the assignment for benefit of creditors held admissible to show that certain property was excluded. Wan- ner v. Landis, 137 Pa. 61. 58 A DIGEST OF [Part I. Declarations of a depositor admitted to show her intention in making a deposit in trust for another. Merigan v. McGonigle, 205 Pa. 321. Statements of a prisoner at the time of his arrest are admissible. Rhodes v. Com., 48 Pa. 39G. On a prosecution for murder it may be shown that deceased had a certain ten-dollar Confederate note; that accused after the mur- der had such a note in his possession and destroyed it, with his declarations at the time of destruction. Com. v. Roddy, 184 Pa. 274. Where the issue is the existence of a lease, notices by the lessor to his employees and entries in his books showing receipt of rent are admissible. Crooks v. Bunn, 136 Pa. 368. Narrative of past events. — A narrative of past events is inadmis- sible. Cottison v. Coitison, 22 Pa. 375. Silence in the face of accusation. — Ettinger v. Com., 98 Pa. 338. The silence of an accused at a judicial inquiry into his guilt in the face of an accusation against him is no evidence of his guilt. Com. v. Zorambo, 205 Pa. 109. Entries in a book to which plaintiff had constant access and over which he had control are admissible against him on the ground that lie must have seen them and did not protest. Ryder v. Jacobs, 196 Pa. 386. Article 9. facts necessary to explain or introduce relevant FACTS. Facts necessary to be known to explain or introduce a fact in issue or relevant or deemed to be relevant to the issue, or which support or rebut an inference suggested by any such fact, or which establish the identity of any thing or person whose identity is in issue or is or is deemed to be relevant to the issue, or which fix the time or place at which any such fact happened, or which show that any document produced is genuine or otherwise, or which show the rela- tion of the parties by whom any such fact was transacted, or which afforded an opportunity for its occurrence or transaction, or which are necessary to be known in order to Chap. II.] THE LAW OF EVIDENCE. 59 show the relevancy of other facts, are deemed to be rele- vant in so far as they are necessary for those purposes re- spectively. Illustrations. (a) The question is, whether a writing published by A of B is libellous or not. The position and relations of the parties at the time when the libel was published may be deemed to be relevant facts as introductory to the facts in issue. The particulars of a dispute between A and B about a matter un- connected with the alleged libel are not deemed to be relevant under this article, + hough the fact that there was a dispute may be deemed to be relevant if it affected the relations between A and B.27 (b) The question is, whether A wrote an anonymous letter, threat- ening B, and requiring B to meet the writer at a certain time and place to satisfy his demands. The fact that A met B at that time and place is deemed to be rele- vant, as conduct subsequent to and affected by a fact in issue. The fact that A had a reason, unconnected with the letter, for being at that time at that place, is deemed to be relevant, as rebutting the inference suggested by his presence.28 (c) A is tried for a riot, and is proved to have marched at the head of a mob. The cries of the mob are deemed to be relevant, as ex- planatory of the nature of the transaction.29 id) The question is, whether a deed was forged. It purports to be made in the reign of Philip and Mary, and enumerates King Philip's titles. The fact that at the alleged date of the deed, Acts of State and other records were drawn with a different set of titles, is deemed to be relevant.so (e) The question is, whether A poisoned B. Habits of B known to A, which would afford A an opportunity to administer the poison, are deemed to be relevant facts.3l 27 Common practice. 28 R. v. Barnard, 1758, 19 St. Tri. 815. &c. 29iJ. v. Lord George Gordon, 1781, 21 St. Tri. 514, 515, 520, 529, 532, &c. WLady Ivy's Case, 1684, 10 St. Tri. 617, 618. 31 R. v. Donellan, 1781, Wills Circ. Ev. 241 ; and see my ' History of the Criminal Law/ iii. 371. 60 A DIGEST OF [Part I. (f) The question is, whether A made a will under undue influence. His way of life, and relations with the persons said to have influenced him unduly, are deemed to be relevant facts.32 AMERICAN NOTE. General. Authorities. — Underhill on Evidence, sees. 186, 215, 375; Abbott's Trial Evidence (2d ed.), p. 129; State v. Witham, 72 Me. 531 (Iden- tity) ; Dietsch v. Wiggins, 15 Wall. (U. S.) 540, 546; Bank v. Ken- nedy, 17 Wall. (U. S.) 19, 24; People v. Vernon, 35 Cal. 49, 95 Am. Dec. 1. Where two persons bear the same name, facts are admissible which tend to make it probable that one of them and not the other entered into the contract upon which the suit is brought. Jones v. Parker, 20 N. H. 81. Evidence of the extravagance of the accused is relevant in con- nection with other evidence upon the question of whether or not he was guilty of embezzlement. Hackett v. King, 8 Allen (Mass.), 144. Evidence of the expenditures of a husband is relevant upon the question of whether certain articles are necessaries for his wife. Raynes v. Bennett, 114 Mass. 424. Relation of the parties. — Roach v. Caldbeck, 04 Vt. 593 ; Craig's Appeal, 77 Pa. 448; Siberry v. State, 133 Ind. 677. In connection with other evidence. — Evidence, in itself inadmissi- ble, may be rendered admissible by being offered in connection with other evidence which is admissible. Gage v. Smith, 27 Conn. 75: State v. Stevens, 65 Conn. 93; Plumb v. Curtis, 66 Conn. 154; Can- ton v. Burlington, 58 Conn. 283. Rebutting evidence. — Where it is alleged that one has committed u trespass, and evidence is introduced that he was at the place, he may show in rebuttal that he was there for another purpose. Prin- die v. Glover, 4 Conn. 2o'0. Evidence received on rebuttal, if not objected to, is before the court for any legitimate purpose. Ailing v. Forbes, 68 Conn. 575. As supporting the rule of the text as to rebutting evidence, see Morris v. Spofford, 127 Mass. 85. On the question of whether a burner was lighted, evidence that on certain other occasions it was not lighted, is admissible to rebut tes- 32 Boyse v. Rossborough, 1857, 6 H. L. C. 42-58. Chap. II.] THE LAW OF EVIDENCE. 61 timony that there was a custom to keep it lighted. Wentworth v. Eastern R. R. Co., 143 Mass. 248. Explanatory facts. — Authority on the first point in the text. Hughes v. Gross, 160 Mass. 61, 43 N. E 1031, 32 L. R. A. G20; Mar- tin v. Stale, 104 Ala. 71. Identity. — Com. v. Whitman, 121 Mass. 361; Com. v. Irwin, 107 Mass. 401; McDonald v. Savoy, 110 Mass. 49; Robinson v. Litchfield, 112 Mass. 28; Com. v. Bush, 112 Mass. 2S0; Com. v. Snow, 116 Mass. 47; Com. v. Dorsey, 103 Mass. 412; Com. v. Campbell, 155 Mass. 537. The jury may find that " Asahel Moss, 2d," on the tax-books, is meant for Asahel Morse. Litchfield v. Farmington, 7 Conn. 100. Where a bottle of beer is sent, labelled and sealed, by express, to an assayer, and the assayer testifies as to a bottle so labelled, there is no ground of exception so far as the point as to identity of the beer is concerned. Com. v. Bentley, 97 Mass. 551. Testimony of the witness that he " thought " the person accused was the offender may be sufficient identification. Com. v. Munsey, 112 Mass. 287. Testimony that the offender " looked pretty near like " the ac- cused, is not sufficient identification. Com. v. Snow, 14 Gray (Mass.), 385. Where there is testimony as to identification by voice, the accused, not being a witness, may not repeat something to the jury in rebuttal. Com. v. Scott, 123 Mass. 222. See also Johnson v. Comm., 115 Pa. 369. A witness who has heard the defendant talk but once, may testify as to identification by the voice, but the jury may be instructed not to convict upon that evidence alone. Com. v. Williams, 105 Mass. 62; Com. v. Hayes, 138 Mass. 185. Positive direct evidence of the identity of the accused is not neces- sary if the jury are satisfied of the fact. Com. v. Cunningham, 104 Mass. 545. Where one is asked who did a certain thing, an answer " that man" (pointing to the defendant) is proper. Com. v. Whitman^ 121 Mass. 361. Any person is a competent witness to testify as to the identity of persons, things or handwriting. Com. v. Sturtivant, 117 Mass. 122. Upon the issue of identity the appearance of a person two yeaTS before and after the date in question is competent. Com. v. Camp- bell, 155 Mass. 537. G2 A DIGEST OF [Part I. Fixing time. — It is admissible to prove the time when a certain occurrence, foreign to the case, took place, for the purpose of fixing by it the time when a certain act, within the case, was lone. Quin- tard v. Corcoran, 50 Conn. 38. A letter cannot be introduced to establish the time of its receipt. Com. v. Burns, 7 Allen (Mass.), 540. Conversations, in order to be admissible to fix a date, must have reference to something which tends to establish it. Fisk v. Cole, 152 Mass. 335. Illustration (g). — See Mut. Life Ins. Co. v. Hillman, 145 U. S. 285. New Jersey. Circumstances surrounding testator. — The situation and surround- ings of a testator are admissible to enable the court to understand and apply the will. Griscom v. Evens, 40 N. J. L. 402; Bur nut x. Burnet, 30 N. J. Eq. 595. Explanatory maps. — When explanatory maps, not original evi- dence themselves, are admissible. State v. Smith, 68 N. J. L. 609. A contract between plaintiff and defendant's intestate unenforce- able because not in writing is admissible to show that certain service was not rendered as a gift. Gay v. Mooney, Admr., 67 N. J. L. 27. Maryland. Explanatory facts. — Divers v. Fulton, 8 G. & J. 202; Keedy v. Xewcomer, 1 Md. 241. When a letter is admissible and refers to a certain memorandum, the memorandum is also admissible to explain the letter. Barney v. Smith, 4 H. & J. 485. In a prosecution for causing abortion proof as to the character of the house where it occurred is admissible. Hays v. State, 40 Md. 633. Relation of the parties. — Where a young woman is claiming com- pensation against the estate of her aunt for doryestic services, it is proper to show the relation existing between the two persons, whether the claimant was sent to school, and whether the aunt employed other servants. Gill V. Donovan. !)() Md. 518. Letters may be admissible to show the relation of the parties. though not competent evidence to prove facts stated therein. Hardest i/ v. /7 arris, 19 Md. 317. Fixing time. — A witness may use an irrelevant transaction for the purpose of fixing the time of an occurrence. Goodhand v. Benton. 6 G. & J. 481. Chap. II.] THE LAW OF EVIDENCE. 63 Illustration (f).— Griffith v. Diffenderffer, 50 Md. 466. Illustration (p). — Jones v. Jones, 45 Md. 144. In rebuttal. — ■ Testimony inadmissible in itself may be admissible by way of rebuttal. Milburn v. State, 1 Md. 1 ; Armstrong v. Thruston, 11 Md. 148. Evidence allowed as rebuttal which would have been irrelevant alone. Townshend v. Townshend, 6 Md. 295. Pennsylvania. Authorities — Explanatory facts. — Any fact which forms a link in a chain of evidence may be proved. Johnston v. Warden, 3 Watts, 101; Geisse v. Dobson, 3 Whart. 34; Haughey v. Strickler, 2 W. & S. 411; Wagenseller v. Immers, 97 Pa. 465; Phila. R. Co. v. Henrice, 92 Pa. 431. The commission of a burglary by the defendant is admissible to explain why an officer was in a certain house where he was killed by defendant. Com. v. Major, 198 Pa. 290. Books given in evidence to explain the nature of a partnership interest. Thommon v. Kalbach, 12 S. & R. 238. A written contract on a collateral matter was received for ex- planatory purposes. Taylor v. Battler, 179 Pa. 451. Where defendants accused of murder set up an alibi, the prosecu- tion may explain the presence of the accused at the distant place by proof that they rode away on horses belonging to a certain person who found his horses and saddles gone. Com. v. Roddy, 184 Pa. 274. A conversation between the witness and a third person is admis- sible if it is necessary to a correct understanding of relevant facts. Harper v. Kean, 11 S. & R. 280. Identity — Udderzook v. Com., 76 Pa. 340. Evidence of another crime may be given to prove identity. Goersen v. Com., 99 Pa. 388. Where there is testimony as to identification by voice, the accused, not being a witness, may not repeat something to the jury in re- buttal. See Johnson v. Com., 115 Pa. 369. Relation of the parties. — Evidence not relevant to the issue is admissible to explain how the issue arose and the relation of the parties to it. Shuman v. Shuman, 27 Pa. 90. Declarations to show the relation of parties. Postens v. Postens, 3 W. & S. 127: Koch v. Howell, fi W. & S. 350; Kimmel v. McRight, 2 Pa. 38: Craig's Appeal. 77 Pa. 448. 64 A DIGEST OF [Pabt i. To show that one acted as agent in paying money, it may be proved that lie was a man of little property himself. Strimpfler v. Roberts, 18 Pa. 283. Relations of testator with persons said to have used undue in- fluence may be shown. Frew v. Clarke, SO Pa. 170; Kenyon v. Ash- bridge, 35 Pa. 157. Rebuttal. — Evidence may be admissible as rebuttal which would not have been admissible in itself. Sidle v. Wallers, 5 Watts, 389; Webb v. Lees, 149 Pa. 13; Reyenthaler v. Phila., 160 Pa. 195: Seltzer v. Brundage, 17 Atl. 9. Inadmissible evidence received without objection may be rebutted by the same kind of evidence. Baker v. Rorke, 14 Pa. Co. Ct. 35; McElheny v. Railroad Co., 147 Pa. 1. See McCarthy v. Scanlon, 176 Pa. 262. Contra, Sicank v. Phillips, 113 Pa. 482. Chap. III.] THE LAW OF EVIDENCE. 65 CHAPTER III. OCCURRENCES SIMILAR TO BUT UNCONNECTED WITH THE FACTS IN ISSUE, IRRELEVANT EXCEPT IN CERTAIN CASES. Article 10.* similar but unconnected facts. A fact which renders the existence or non-existence of any fact in issue probable by reason of its general resemblance thereto and not by reason of its being connected therewith in any of the ways specified in articles 3-9 both inclusive, is deemed not to be relevant to such fact except in the cases specially excepted in this chapter. Illustrations. (a) The question is, whether A committed a crime. The fact that he formerly committed another crime of the same sort, and had a tendency to commit such crimes, is deemed to be irrelevant.! (6) The question is, whether A, a brewer, sold good beer to B, a publican. The fact that A sold good beer to C, D, and E, other pub- licans, is deemed to be irrelevant2 (unless it is shown that the beer sold to all is of the same brewing). 3 * See Note VI. i R. v. Cole. 1 Fhi. Ev. 508 (said to have been decided by all the Judges in Mich. Term, 1810). ZHolcombe v. Hewson, 1810, 2 Camp. 391. 3 See Illustrations to Article 3. 5 66 .4. DIGEST OF [Pabt I. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 52 and 53; Underhill on Evidence, sec. 8; Taylor on Evidence ( Chamberlayne's 9th ed.), p. 2571; State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; Flagg v. Willington, 6 Me. (6 Greenl.) 386; Parker v. Poland Pub. Co., 69 Me. 173, 31 Am. Rep. 262; Dodge v. Haskell, 69 Me. 429; Eandley v. Call, 27 Me. (14 Shep.) 35; Staples v. Smith, 48 Me. 470; Ball v. Tribou, 42 Me. 192; McLoon v. Spaulding, 62 Me. 315; Tower v. Rutland, 56 Vt. 28 ; Keith v. Taylor, 3 Vt. 153 ; Nones v. Northouse, 46 Vt. 5S7; Whitney v. Firsf War. .Banft, 55 Vt. 154, 45 Am. Dec. 598; Harris v. Howard, 56 Vt. 695; Phelps v. Conant, 30 Vt. 277; Jones v. A 7 . Y., y. 5. <£- Jf. R. R. Co., 20 R. I. 210, 37 Atl. 1033, 11 Am. & Eng. R. Cas. (N. S.) 414, 3 Am. Neg. Rep. 496; Hopkins v. Howard, 20 R. I. 394, 39 Atl. 519; Agulino v. A 7 . Y"., A". //. d H. R. R. Co., 21 R. I. 263, 43 Atl. 63, 6 Am. Neg. Rep. 199, 14 Am. & Eng. R. Cas. (N. S.) 314; Stone v. Pendleton, 21 R. I. 332, 43 Atl. 643; Leighton v. Sargent, 31 X. H. (11 Fost.) 119, 64 Am. Dec. 323; True v. San- born, 27 N. H. (7 Fost.) 383; Filer v. Peebles, 8 N. H. 226; Mead v. Merrill, 33 N. H. 437; Z^OT/e v. Leighton, 22 N. H. (2 Fost.) 71, 53 Am. Dec. 231; Sicampscott Machine Co. v. iraZ/ccr, 22 N. H. (2 Fost.) 457, 55 Am. Dec. 172; Durkee v. India Mut. Ins. Co., 159 Mass. 514, 34 N. E. 1133; Smith v. A 7 . Y. d xY. E. R. R. Co., 163 Alass. 569, 41 N. E. 110; Elliott v. Lyman, 3 Allen (Alass.), 110; Kelliher v Miller, 97 Alass. 71; Howe v. n*ei/»ioH//i., 155 Alass. 439, 29 N. E. 646; Howe v. Whitehead, 130 Alass. 268; Gahagan v. Boston, etc., R. R. Co., 1 Allen (Alass.), 1S7, 79 Am. Dec. 724; Dana v. A'at. Bank of Republic, 132 Alass. 156; Morris v. L'asJ Haven, 41 Conn. 252; Chapman v. Champion, 2 Day (Conn.), 101; Hoa;ie v. 77o?ue Zns. Co., 32 Conn. 21; Gorharn v. Gorham, 41 Conn. 242; Edwards v. Corner, 35 Conn. 517; Beach v. Catiin, 4 Day (Conn.), 284; #06- 01ns v. Harvey, 5 Conn. 335; Hoadley v. J/. Seicard & Son Co., 71 Conn. 640, 42 Atl. 997; /ruin^r v. Shethar, 71 Conn. 434, 42 Atl. 25: Cunningham v. Fair Haven d Westville R. Co., 72 Conn. 244, 43 Atl. 1047, 6 Am. Xeg. Rep. 427; Anderson v. Cowles, 72 Conn. 335: State Bank v. TVa^rr/iowse, 70 Conn. 76; Boyd v. L 7 . S., 142 U. S. 450; Cole v. Com., 5 Gratt. (Va.) 606; McKay v. Russell, 3 Wash. 378. 28 Pac. 908; Barney v. Rickard, 157 U. S. 352; Wise v. Acker- Chap. III.] TEE LAW OF EVIDENCE. 67 man, 76 Md. 375; Rockford Gas-Light Co. v. Ernst, 08 111. App. 300; Lombar v. E. Taicas, 80 Mich. 14; Birmington R. Co. v. Alexander, 93 Ala. 133; District of Col. v. Amies, 107 U. S. 519. Instances. — Similar, but unconnected accidents, cannot be proved. Hubbard v. R. R. Co., 39 Me. 506. The question is, whether A sold meat improperly slaughtered and unwholesome. The fact that A, several years previous to the sale complained of, had sold similar meat is irrelevant. True v. Sanborn, 27 N. H. (7 Fost.) 383. The question is, whether there was sewer gas in a given house, connected with a public sewer, from which the inmates suffered. The facts that the inmates of two other houses, situated on the same street and connected with the same public sewer, did not per- ceive the presence of sewer gas therein, and were not injuriously affected by it, are deemed irrelevant. Bateman v. Rutland, 70 Vt. 500, 41 Atl. 500. The fact that a person sold proper goods to A does not, in itself, tend to prove that he sold proper goods to E, and is inadmissible. Lake v. Clark, 97 Mass. 346. It is admissible in connection with the fact that the two sets of goods were alike. Pike v. Fay, 101 Mass. 134. The question is whether A, a landlord, was liable in damages to B, his tenant, for personal injuries sustained by reason of a defect in a set of wooden steps belonging to the tenement. The fact that C had fallen on the same steps in the same manner, before the accident to B, is irrelevant. Dean v. Murphy, 169 Mass. 413, 48 N. E. 283. The question is, whether A and B are jointly interested in trading in cattle. The fact that A and B were jointly interested in trading in horses is irrelevant. Farnum v. Farnum, 13 Gray (Mass.), 508. In an action involving the question whether a certain loom attach- ment worked successfully, it is competent to show that it worked properly on another loom, evidence having previously been introduced that the two looms were alike. The similarity of the looms presented a question to be passed upon ultimately by the jury. Brierly v. Mills, 128 Mass. 291. In an action for assault, similar assaults cannot be proved. Mathews v. Terry, 10 Conn. 459. An information for adultery charged a single act of adultery in a single count. Held, that, having given evidence of one such act, the RS A DIGEST OF LI'akt I. State could not proceed to show other instances of the same crime committed with the same person at other times and places. State v. Bates, 10 Conn. 373. A judgment in a civil action is not evidence, conclusive or other- wise, of tin; fact thereby established, in a subsequent criminal prosecu- tion against one of the parties, in which the same question is again involved. State v. Bradnack, 69 Conn. 212. On the trial of an action on the warranty of a horse, the plaintiff, who testified in his own behalf, was asked, on cross-examination, how many other purchases of horses he had made in the last twenty years, and tried to set aside on the ground that he had discovered defects in 'hem. Held, to be inadmissible, as raising an outside and irrelevant Russell v. Cruttenden, 53 Conn. 564. The question is whether A was in such condition as to require the appointment of a guardian to manage her estate. The fact that A had been very imprudent ten years or more before the filing of the petition by the overseer of the poor is irrelevant. Hopkins v. Howard, 20 R. I. 394. 39 Atl. 519. The question is, whether A, a testator, was insane. Letters of ]>. who was proved to be insane, offered for the purpose of showing that insane persons might rationally write and converse, are irrelevant el, other publications are irrelevant. Schenclc v. -pen. 208, 213. Negligence — Dangerous areaway. — In damage suit for injury caused by falling into an areaway, the defendant may not show that such areas as this were common and that more than 10.000 people had passed this one every year without accident. Temperance Hull Assn. v. Giles, 33 X. J. L. 260. Previous intoxication. — Evidence as to whether plaintiff in an action for damages was intoxicated on o^easions previous to the injury is not admissible. Shelly v. Brunswick Traction Co., 05 N. J. L. 639. Value of land. — Value of land may be shown by proof of sales of other land in the vicinity, but only when there is a substantial Chap. III.] THE LAW OF EVIDENCE. 73 similarity between the properties. Laing v. United N. J. R. & C. Co., 54 N. J. L. 576. Impossibility of selling one lot of standing timber is no evidence as to the value of another lot. Wiley v. Railroad Co., 44 N. J. L. 247. To show value in condemnation proceedings, evidence that land near by has been offered at a certain price is not admissible. Mont- clair Ry. Co. v. Benson, 36 N. J. L. 557. Amount of damage. — To show amount of damage caused by a rail- road to land it is not competent to show that in other localities land increased in value because of proximity to the road. Railroad Co. v. Doughty, 22 N. J. L. 495. Incompetency of workman. — To show incompetency of a workman in a suit brought by him for breach of contract of employment, the defendant is not limited to work done for the defendant. Match Co. v. Swett, 61 N. J. L. 457. Other similar grants and conveyances not admissible. I itzgerald V. Faunce, 46 N. J. L. 599. Rates charged by other insurance companies admitted. Martin v. Fire Ins. Co., 42 N. J. L. 46. Maryland. Authority. — Wise v. Ackerman, 76 Md. 375. Value. — To show value of land, evidence of the prices paid for similar land near by within a short time is admissible. Baltimore v. Smith, 80 Md. 458. Prices obtained for the land at previous sales are admissible to prove its present value. Baltimore V. Brick Co., 80 Md. 45S. In action for breach of contract to buy certain goods, evidence of the price plaintiff got from others for similar goods is not admissible. Eckenrode v. Chemical Co., 55 Md. 51. To prove value, evidence of the price of similar goods in the neigh- borhood is admissible. Williamson v. Dillon, 1 H. & G. 444. Value at a different place.— Price of cotton at Baltimore not ad- mitted to show amount of loss at Bremen, hazard v. Transportation Co., 78 Md. 1. To show value at one place it is admissible to show value at an- other. Williamson v. Dillon, 1 H. & G. 444. Value at a different time. — The value of insured goods on February 23d admitted to show their value on July 23d. Insurance Co. v. Traub, 83 Md. 524. 74 A DIGEST OF [Pabt I. Other crimes. — Evidence of prisoner's being armed and in a vicious humor just before the oifense is admissible even though it inci- dentally discloses another crime. Kernan v. State, 65 Md. 253. Proof of other crimes is not generally admissible. Lamb v. State, 66 Md. 285. To show innoceuce one cannot show that on other occasions he had opportunities to violate the law but did not do so. Archer v. State, 45 Md. 33. Other fires. — To prove that a fire was set by sparks from an engine it is permissible to show that other fires have been set by sparks from other engines of the railroad. Annapolis R. Co. v. Gantt, 39 Md. 115. B. & 8. R. Co. v. Woodruff, 4 Md. 254, is no longer authority. Other contracts. — The terms of other similar contracts are not admissible. Kriete v. Myer, 01 Md. 558. Insanity in the family. — When evidence has been introduced tend- ing to show that a testator was insane, it may be shown that other members of the family were afflicted in similar manner. Berry v. Safe Deposit Co., 96 Md. 45. Custom of doing things. — The custom of a justice of the peace in relation to his manner of drawing up deeds is not admissible. PococJc v. Hendricks, 8 G. & J. 421. To prove the number of acres of grain put in by a person, it is not permitted to prove the number of acres he commonly put in. Keedy v. Newcomer, 1 Md. 241. Pennsylvania. Res inter alios. — Res inter alios acta? not admissible. Rose v. Klincjer, 8 W. & S. 178; Oram v. Rothermel, 98 Pa. 300. In action for contract price of gas furnished, the prices specified in contracts with third persons are immaterial. Philadelphia Co. v. Park Bros., 138 Pa. 346. To prove that defendant had epileptic fits, it is not relevant that his child has such fits. Hall v. Com., 12 Atl. 163. intoxication of the prisoner is not provable by the condition of a companion who had taken the same number of drinks. Com. v. Cleary, 135 Pa. 64. Similar dealings with other firms not admissible. Sharp v. Emmet, 5 Whart. 288. Other crimes. — Evidence of other crimes not admissible. Com. v. Mellert, 2 Woodw. Dec. 342 ; Com. v. Saulsbury, 152 Pa. 554. Chap. III.] THE LAW OF EVIDENCE. 75 Other crimes may be incidentally referred to in proving a con- federacy. Com. v. Biddle (No. 2), 200 Pa. 647. Another crime may be proved incidentally, as when the defendant killed one of the officers when lie was arrested for the crime in ques- tion. Com. v. Biddle, 200 Pa. 647. Other criminal acts, intended to prevent conviction, may be given in evidence. Cover v. Com.. 8 Atl. 196. Under illustration (a) see Shaffner v. Com., 72 Pa. 60. Other crimes may be relevant if they show the same general pur- pose. Brown v. Com., 76 Pa. 319; Kramer v. Com., 87 Pa. 299; Goersen v. Com., 99 Pa. 388. Value at other times and places. — An offer to purchase is not admissible to prove value. Xegley v. Lindsay, 67 Pa. 217. Value at a different place not admitted to show amount of damage from breach of contract, because circumstances were not similar. Fessler v. Love, 48 Pa. 407 ;' Hill v. Canfield, 56 Pa. 454. Evidence of value eight years before is too remote. Miller v. Water Co., 148 Pa. 429. The best evidence of the market price of land is not the price paid for other land in the neighborhood. Railroad Co. v. Rose, 74 Pa. 362. Such evidence as to particular sales is not admissible. Rail- road Co. v. Hiester, 40 Pa. 53; Railroad Co. v. Patterson, 107 Pa. 401 : Railroad Co. v. Vance, 115 Pa. 325; Railroad Co. v. Ziemer, 124 Pa. 560. Value of services may be proved by prices paid for similar ser- vices. Holman v. Fesler, 7 VV. & S. 313. Other fires set by sparks. — To prove that a fire was caused by sparks from an engine, it may be shown that other fires occurred that day because of sparks from the same engine. Thomas v. Railroad Co., 182 Pa. 538. To prove that a barn was fired by sparks from an engine it may be shown that it was common for sparks to set fire to adjoining woods. Railroad Co. v. Stranahan, 79 Pa. 405; Albert v. N. Cent. R. Co., 98 Pa. 316. Miscellaneous. — That a husband turned his wife out once is no evidence that he did so again. Lentz v. Wallace, 17 Pa. 412. As against a judgment creditor to show that his judgment was con- fessed by fraud, it is not admissible to show that the debtor had confessed another judgment for fraudulent purposes. Miller V. Mc- Alister, 178 Pa. 140. 76 A DIGEST OF [Part I. The terms of previous contracts of sale between the parties ad- mitted to prove the terms of the one in question. Leiar v. Brown, 15 Pa. 215; Trego v. Lewis, 58 Pa. 463. To prove the correctness of one entry in a book, other entries in the same book may be proved. Young v. Com., 28 Pa. 501. To prove that a note was raised in amount, it is proper to admit a card showing practice work in the alteration of figures. Wheeler v. Ahlers, 189 Pa. 138. Article 11.* acts showing intention, good faith, etc. When there is a question whether a person said or did something, the fact that he said or did something of the same sort on a different occasion may be proved if it shows the existence on the occasion in question of any intention, knowledge, good or bad faith, malice, or other state of mind or of any state of body or bodily feeling, the existence of which is in issue or is or is deemed to be relevant to the issue ; but such acts or words may not be proved merely in order to show that the person so acting or speaking was likely on the occasion in question to act in a similar manner. 4 Where proceedings are taken against any person for having received goods, knowing them to be stolen, or for having in his possession stolen property, the fact that there was found in the possession of such person other property stolen within the preceding period of twelve months, is deemed to be relevant to the question whether he knew the * See Note VI. •*34 & 35 Vict. c. 112, s. 19 (language slightly modified). This enactment oyerrules to a strictly limited extent R. v. Oddy, 1851, 2 Den. C. C. 264, and practically supersedes R. v. Dunn, 1826, 1 Moo. C. C. at p. 150, and R. v. Davis, 1833, 6 C. & P. 177. See Illustrations. CiiAr. III.] THE LAW OF EVIDENCE. 77 property to be stolen which forms the subject of the pro- ceedings taken against him. If, in the case of such proceedings as aforesaid, evidence has been given that the stolen property has been found in the possession of the person proceeded against, the fact that such person has within five years immediately preceding been convicted of any offence involving fraud or dishonesty, is deemed to be relevant for the purpose of proving that the person accused knew the property which was proved to be in his possession to have been stolen, and may be proved at any stage of the proceedings : provided that not less than seven days' notice in writing has been given to the person accused that proof is intended to be given of such previous conviction. The fact that the prisoner was within twelve months in possession of other stolen property than that to which the charge applies, is not deemed to be relevant, unless such property was found in his possession at or soon after the time when the proceedings against him were taken. 5 Illustrations. (a) A is charged with receiving two pieces of silk from B, knowing them to have been stolen by him from C. The facts that A received from B many other articles stolen by him from C in the course of several months, and that A pledged all of them, are deemed to be relevant to the fact that A knew that the two pieces of silk were stolen by B from Cfi {b) A is charged with uttering, on the 12th December, 1854, a counterfeit crown piece, knowing it to be counterfeit. a R. v. Carter, 1884, 12 Q. B. D. 522; and see R. v. Drage, 1878, 14 Cox, C. C. 85. OR. v. Dunn, 1826, 1 Moo. C. C. 146. 78 A DIGEST OF [Part L The facts that A uttered another counterfeit crown piece on the 11th December, 1854, and a counterfeit shilling on the 4th January, 1855, are deemed to be relevant to show A's knowledge that the crown piece uttered on the 12th was counterfeit. 7 (c) A is charged with attempting to obtain money by false pre- tences, by trying to pledge to B a worthless ring as a diamond ring. The facts that two days before, A tried, on two separate occasions, to obtain money from C and D respectively, by a similar assertion as to the same or a similar ring, and that on another occasion on the same day he obtained a sum of money from E by pledging as a gold chain a chain which was only gilt, are deemed to be relevant, as show- ing his knowledge of the quality of the ring.8 (d) A is charged with obtaining eggs from B by falsely pretending that he was carrying on a real business as a farmer or dairyman. The fact that on subsequent occasions he had obtained eggs from C and D by mean3 of the same pretence is deemed to be relevant, as Bhowing that he was not carrying on a real business.9 (e) A is charged with obtaining money from B by falsely pretend- ing that Z had authorised him to do so. The fact that on a different occasion A obtained money from C by a similar false pretence is deemed to be irrelevant,^ as A's knowl- edge that he had no authority from Z on the second occasion had no connection with hiB knowledge that he had no authority from Z on the first occasion. (/) A sues B for damage done by a dog of B's which B knew to be ferocious. The facts that the dog had previously bitten X, Y, and Z, and that they had made complaints to B, are deemed to be relevant. n {g) The question is, whether A, the acceptor of a bill of exchange, knew that the name of the payee was fictitious. t R. v. Forstcr, 1855, Dear. 456; and see R. v. Weeks, 1861, L. & C. 18. ««. t. Francis, 1874, L. R. 2 C. C. R. 128. The case of 7?. v. Cooper, 1875, 1 Q. B. D. (C. C. R.) 19, is similar to R. v. Francis, and perhaps stronger. »R. v. Rhodes, [1899], 1 Q. B. 77. See, too, R. v. Weill, post, p. 55, note 23. 10 R. v. Bolt, 1860, Bell, C. C. 280; and see R. v. Francis, uo. sup. p. 130. 11 See cases collected in Roecoe's Nisi Prius, 748. Chap. HI.] THE LAW OF EVIDENCE. 79 The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee, if the payee had been a real person, is deemed to be relevant, as showing that A knew that the payee was a fictitious person.12 (h) A sues B for a malicious libel. Defamatory statements made by B regarding A for ten years before those in respect of which the action is brought are deemed to be relevant to show malice.!?- (i) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss. The fact that, at the time when A represented C to be solvent, C, was to A's knowledge supposed to be solvent by his neighbours and by persons dealing with him, is deemed to be relevant, as showing that A made the representation in good faith. 14 (/) A is sued by B for the price of work done by B, by the order of C, a contractor, iipon a house, of which A is owner. A's defence is that B's contract was with C. The fact that A paid C for the work in question is deemed to be relevant, as pr-oving that A did, in good faith, make over to C the management of the work in question, so that C was in a position to contract with B on C's own account, and not as agent for A.15 (fc) A is accused of stealing property which he had found, and the question is, Avhether he meant to steal it when he took possession of it. The fact that public notice of the loss of the property had been given in the place where A was, and in such a manner that A knew or probably might have known of it. is deemed to be relevant, as showing that A did not, when he took possession of it, in good faith believe that the real owner of the property could not be found. 1C (I) The question is, whether A is entitled to damages from B, the seducer of A's wife. 12 Gibson v. Hunter, 1794, 2 H. Bl. 288. 13 Barrett v. Long, 1851, 3 H. L. C. 395, at p. 114. 14 Sheen v. Bumpstead, 1863, 2 H. & C. 193. 15 Gerish v. Charlier, 1845, 1 C. B. 13. 16 This illustration is adapted from Preston's Case, 1851, 2 Den. C. C. 353 ; but the misdirection given in that case is set right. As to the relevancy of the fact, see in particular Lord Campbell's remark on p. 359. 80 A DIGEST OF [Past 1. The fact that A's wife wrote affectionate letters to A before the adultery was committed, is deemed to be relevant, as showing the terms on which they lived and the damage which A sustained.17 (m) The question is, whether A's death was caused by poison. Statements made by A before his illness as to his state of health, and during his illness as to his symptoms, are deemed to be relevant facts. 13 (n) The question is, what was the state of A's health at the time when an insurance on her life was effected by B. Statements made by A as to the state of her health at or near the time in question are deemed to be relevant facts. 19 (o) The question is, whether A, the captain of a ship, knew that a port was blockaded. The fact that the blockade was notified in the Gazette is deemed to be relevant.20 AMERICAN NOTE. General. (See also note to Article 12.) Authorities. — Taylor on Evidence (Chamberlayne's 9th ed.), p. 257^; Greenleaf on Evidence (15th ed.), sec. 53, note; Abbott's Trial Evidence, p. 342; Nichols v. Baker, 75 Me. 334; Conant v. Leslie, 85 Me. 257; //ore?/ v. Grant, 52 X. H. 569; Adams v. Kenney, 59 N. H. 133; State v. Palmer, 65 N. H. 216, 20 Atl. 6; State v. McDonald, 14 R. I. 270; State v. Fitzsimon, 18 R. I. 236, 27 Atl. 446; State v. Ilabib, 18 R. I. 558, 30 Atl. 462; State v. Kelley, 65 Vt. 531; Fratini v. Caslini, 66 Vt. 273; Limerick Xat. Bank v. Adams, 70 Vt. 133, 40 Atl. 166; State v. Hallock, 70 Vt. 159, 40 Atl. 51; Bottomly v. U. 8., 1 Story (U. S.), 135, 143; Kennan v. Gilmer, 131 U. S. 22, 25; Lincoln v. Claflin, 7 Wall. (U. S.) 132, 138; Butler v. Watkins, 13 IVall. (U. S.) 457, 464; Castle v. Bullard, 23 How. Pr. 172, 1S6; pie v. Molineux, 168 X. V. 264. The second, third, and fourth paragraphs of the text, as appears from the notes, are statutory and have no application to this country. IT Trelavmy v. Coleman. 1S17, 1 B. & Aid. 90. 18 R. v. Palmer, 1856. See my 'Hen. View of Crim. Law,' pp. 238, 256 (evidence of Dr. Savage and Mr. Stephens). w Aveson v. Lord Kinnaird. 1805, 6 Ea. 188. 2" Harrat v. Wise, 1829, 9 B. & C. 712. Cfap. III.] THE LAW OF EVIDENCE. 81 Intent. — Com. v. Stoehr, 109 Mass. 3G5 ; Com. v. Dearborn, 109 Mass. 368; Com. v. Kelley, 116 Mass. 341. A is charged with illegally keeping liquors for sale. The fact that nearly three months prior to the complaint and seizure in question A had been convicted, on a plea of nolo contendere, of illegally keeping liquors, is relevant to show intent. State V. Plunkett, 64 Me. 534. Upon an issue of whether A, by the use of fraudulent representa- tion?, purchased property from B, the fact that about the same time of the transaction in question A had fraudulently dealt with B, is rele- vant. Pierce v. Hoffman, 24 Vt. 525. Upon the question of whether A. a depositor and client of a bank, had been misused or wronged by B, its cashier, the fact that other depositors had been misused or wronged by B is irrelevant. Whit- ney v. First Nat. Bank, 55 Vt. 154, 45 Am. Dec. 598. Where fraud is imputed, a considerable latitude must be allowed in the admission of evidence. Hoxie v. Home Ins. Co., 32 Conn. 37. See Goodwin v. V. 8. Annuity Co., 24 Conn. 602. If an insolvent debtor simultaneously conveys all his estate by sev- eral deeds to different relatives, all the deeds are admissible to raise a presumption of fraud, in an action to set aside any one of them. Thomas v. Beck, 39 Conn. 243. In an action of trover the plaintiff claimed that the defendant had conspired with other persons to obtain the goods in question from him by fraudulent representations. Held, that evidence of similar fraudulent representations by the same parties to a stranger, made in order to procure goods from him, was admissible to show the character of the representations made to the plaintiff. Luckey v. Roberts, 25 Conn. 492. In a prosecution for keeping liquors with intent to sell the same, the State offered evidence of sales made by the defendant, before the date of the alleged offense. Held, that it was admissible on the ques- tion of intent, although other prosecutions for such sales were pending against him. Slate v. Raymond, 24 Conn. 206. In an action against A, B, and C, for a conspiracy to defraud such merchants as they could, by representing A, who was a bankrupt, to be a man of large property and safely to be trusted, evidence is ad- missible that the defendants made such representations to certain third parties, in consequence of which the latter, without the request 6 82 J. DIGEST OF [Part I. of the defendants, recommended A to the plaintiff, whereby he was induced to give him credit. Gardner v. Preston, 2 Day (Conn.), 210. So evidence of other recent forgeries or uttering* by the defend- ant can be introduced to show guilty knowledge, or intent on a trial for forgery, or uttering forged instruments. People v. Baird, 105 Cal. 12G; People v. Kemp, 70 Mich. 410; Ansoii v. People, 148 111. 494. In civil actions guilty knowledge, or fraudulent purpose can be similarly proved. Lockicood v. Doane, 107 111. 235; Lincoln v. Claflin, 7 Wall. 132. To prove guilty knowledge on the part of receiver of stolen goods, it may be proved that he had before received stolen goods from the- same person. State v. Ward, 49 Conn. 440; Com. v. Johnson, 133 Pa. 293; Shriedley v<~State, 23 O. St. 130. It is not necessary that the goods before received should have been stolen from the same person, nor be of the same character. State v. Ward, 49 Conn. 441, 442. Proof of a combination or conspiracy for a criminal purpose is not often made by direct, open and positive evidence, but more generally and more naturally by proving a repetition of acts of a character con- ducing to show a mutual purpose. In such cases it is seldom true that any one act, taken by itself, can be detected as tending to prove a combination, but when it is seen in connection with other acts, its true nature may be discovered. State v. Spalding, 19 Conn. 237. See- also Stalker v. Slate. 9 Conn. 341. Inadmissible to show was likely to so act. — As authorities for this proposition of the text, see State v. Bates, 10 Conn. 373: Ed- wards v. Warner, 35 Conn. 517: Shaser v. State, 3G Misc. Rep. 429. A is charged with larceny. The fact that A had told an officer of the law. in the course of conversation^, much concerning other crimes committed by him is irrelevant to show that A, by reason of being a notorious thief, was likely to steal on the occasion in ques- tion. Com. v. Campbell, 155 Mass. 537. Authorities for the first statement of text. — Brum v. Bruen, 4 Edw. Ch. 040: People v. Hopson, 1 Denio. 574: Allison v. Matthieu, 3 Johnson, 235; Gary v. Hotailincj, 1 Hill, 311, 37 Am. Dec. 323: Olmsted v. Eotailinfi. 1 Hill. 317: Welsh v. Carter. 1 Wend. 185, 19 Am. Dec. 473; Benham v. Gary, 11 Wend. 83; Jackson v. Tim- merman, 12 Wend. 299: Tloward v. Sexton, 4 X. Y. 157: Water- man v. Whitney. 11 X. Y. 157; Zabriskie v. Smith, 13 N. Y. 322, 04 Am. Dec. 551; Hall v. Naylor, 18 X. Y. 588. 75 Am. Chap. III.] THE LAW OF EVIDENCE. 83 Dec. 269; Hcnnequin v. Naylor, 24 N. Y. 139; Hathome v. Hodyes, 28 N. Y. 486; Copper man v. People, 56 N. Y. 591; People v. Weed, 56 N. Y. 628; Coleman v. People, 58 N. Y. 555; Swift v. Life /ns. Co., 63 N. Y. 186; IfiMer v. Barber, 66 N. Y. 558; Edington v. Life fr;s. Co., 67 N. Y. 185; Dilliber v. Li/e Jns. Co., 69 N. Y. 256. Similar acts (e. g., gambling transactions) are admissible to prove intent. Gardner v. Meeker, 169 111. 40, 48 N. E. 307, affirm- ing Gardner v. Girtin, 69 111. App. 422. Upon an issue of fraud, prior fraudulent transactions with other parties are irrelevant. Simpkins v. Berggren, 2 Brad. 101. Proof in forgery of the passing of other forged papers is admis- sible to show scienter. Steele v. People, 45 111. 152. Evidence of other recent forgeries or utterings by the defendant can be introduced to show guilty knowledge or intent, on a trial for forgery or uttering forged instruments. Anson v. People, 148 111. 494. In civil actions guilty knowledge or fraudulent purpose can be similarly proved. Lockwood v. Doane, 107 111. 235. The statements of a pauper are admissible as tending to show his residence. Dorr v. Seneca, 74 111. 101. Former dealings may be shown upon an issue of intention. Jamieson v. Wallace, 166 111. 388. The alteration of other notes by the defendant, such notes being held by other parties, is admissible. Merritt v. Boyden, 191 III. 136, 60 N. E. 907, affirming 93 111. App. 613. New Jersey. Authorities. — Evening Jour. Assn. v. McDermott, 44 N. J. L. 430; Ellison v. Lindsley, 33 N. J. Eq. 258. Intent.— On trial for perjury it is permissible to show that the witness testified to immaterial matters falsely for the purpose of showing intention and to rebut any claim of mistake. Dodge v. State, 4 Zab. 456. Illustration (b). — To prove scienter and intent in passing counter- feit money other crimes of the sort are admissible. State v. Van Houten, Pen. 672; State v. Robinson, 1 Harr. 507. Mutual disposition.— On trial for adultery, prior acts of adultery between the same parties are admissible to prove their mutual dis- position. State v. Jackson, 05 N. J. L. 62; State v. Snover, 65 N. J. L. 289. 84 A DIGEST OF [Pakt 1. State of bodily feeling. — An expression of present suffering or pain is a part of the res gestae and is admissible; an expression as to past suffering is not. State v. Gedicke, 43 N. J. L. 86. State of mind. — ■ The existence of lawsuits between parties is ad- missible to show their state of feeling. State v. Zellcrs, 7 N. J. L. 220. Facts admitted as negativing the existence of a certain state of mind or intention. Schlemmer v. State, 51 N. J. L. 23. Forgery. — Alleging intent to defraud in case of forgery. G. S. 1895, " Criminal Procedure," 50. Evidence of passing other counterfeit money admissible to prove guilty knowledge. State v. Van llouten, 2 Pen. 672; State v. Robin- son, 16 N. J. L. 507. Maryland. Intent. — Evidence of a subsequent attempt to cause an abortion by different means is admissible to show intent on the first occasion. Lamb v. State, 06 Md. 285. The' State may show that the accused in a trial for homicide tried to get the deceased to accompany him to a lonely spot. Garlitz V. State, 71 Md. 203. Proof of other similar fraudulent acts is admissible to show intent to cheat and defraud. Bloomer v. State, 48 Md. 521. Proof of other crimes admitted to show intent. Bell v. State, 57 Md. 108 (forgery) ; Lamb v. State, 66 Md. 285 (abortion). Malice. — A previous assault by the accused on the deceased is admissible to show malice. Williams V. State, 64 Md. 384. Forgery. — To prove guilty knowledge, it is permissible to prove that the accused had in his possession about the same time other forged instruments. Bloomer v. State, 48 Md. 521 ; Bell v. State, 57 Md. 10S; Bishop v. State, 55 Md. 138. False pretenses. — In a prosecution for obtaining property by false pretenses, a letter of the defendant showing his guilty intent is admissible even though it was not used in obtaining the property. Carncll v. State, 85 Md. 1. Fraud. — To show intention and motive in cases where fraud is involved similar acts and declarations with third parties are admis- sible. Friend v. Hamill, 34 Md. 298. To prove a conspiracy to defraud, it may be shown that goods Chap. III.] TEE LAW OF EVIDENCE. 85 bought by one were offered for sale by another below cost. Blum v Slate, 94 Md. 375. Illustration (o).— Griffith v. Diffenderffer, 50 Md. 466. Character of an act. — Evidence may be given as to other crimes when they form part of the same transaction and characterize the act in question. Lamb v. State, 66 Md. 2S5. Authority of agent. — To show that an agent had apparent au- thority to make a certain contract, evidence showing that he had had authority to make such contracts with others is admissible. Bonaparte v. Clagett, 78 Md. 87. Pennsylvania. General authorities. — Sherwood v. Tit man, 55 Pa. 77; Kilrow v. Com., 89 Pa. 480; Neel v. Potter, 40 Pa. 483; Green, etc., P. Co. v. Bresner, 97 Pa. 103. Intention. — To prove that a misstatement as to loss was inten- tional, other such misstatements may be proved. McSparran v. In- surance Co., 193 Pa. 184. One may testify as to his intent where the character of the trans- action must be shown by it. Bartley v. Phillips, 179 Pa. 175. Proof of other crimes admissible to show motive and intent. Coersen v. Com., 99 Pa. 388, 106 Pa. 477 (arsenical poisoning) : McConkey v. Com., 101 Pa. 416; Kramer v. Com., 87 Pa. 299; Com. v.\Shepherd, 2 Pa. Dist. 345. In trial for murder of a wife by setting fire to her dress, it may be shown that defendant at another time set fire to her dress. Com. v. Birriolo, 197 Pa, 371. After the doing of an act has been proved, to prove that a certain person did it a prior declaration of his intention to do it may be proved. Dodge v. Bache, 57 Pa, 421. Evidence of one's penurious and miserly habits is admissible to show that a transfer was not a gift, Hasel v. Beilstein, 179 Pa. 560. State of mind. — A letter written a month before the homicide admitted to show the state of defendant's mind toward the deceased. Com. v. Kransc, 193 Pa. 306. Bodily condition. — Statements of present bodily pain are admissi- ble as part of the res gesto? ; a statement as to past suffering is not. Lichteniuallner v. Laubach, 105 Pa. 366. Guilty knowledge. — Other instances of receiving stolen goods are provable. Com. v. Charles, 21 Pittsb. Leg. J. 11, 14 Phila. 663; 86 A DIGEST OF [Pabt I. Com. v. Moorby, 8 Pliila. 615; Com. v. Johnson, 133 Pa. 293; Kilrow v. Com., 89 Pa. 480. Fraud. — To show fraud, evidence of similar transactions with other persons is admissible. Kauffman v. Swar, 5 Pa. 230; Helfrich V. Stern, 17 Pa. 143: Evans v. Matson, 56 Pa. 54. To identify one who got ;» note by fraud, it is permissible to show that defendant got other notes from other persons by fraud. Brown v. Schock, 77 Pa. 471. Similar fraudulent representations admissible to show false pre- tense. Striker v. McMichael, 1 Phila. 89. Subsequent misrepresentations admitted to show fraud. Cum- min as v. Cummings, 5 W. & S. 553. Article 12.* facts showing system. When there is a question whether an act was accidental or intentional, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is deemed to be relevant. Illustrations. (a) A is accused of setting fire to his house in order to obtain money for which it is insured. The facts that A had previously lived in two other houses succes- sively, each of which he insured, in each of which a fire occurred, and that after each of those fires A received payment from a different in- surance office, are deemed to be relevant, as tending to show that the fires were not accidental^ * See Note VI. 21 R. y. Gray, 1866, 4 F. & F. 1102. I acted on this case in R. v. Stanley, Liverpool Summer Assizes, 1882, but I greatly doubt its au- thority. The objection to the admission of such evidence is that it may practically involve the trial of several distinct charges at once, as it would be hard to exclude evidence to show that the other fires were accidental. — See, too, Makin v. The Attorney-General for New Chap. III.] 7'UE LAW OF EVIDENCE. 87 (6) A is employed to pay the wages of B's labourers, and it is A's -duty to make entries in a book showing the amounts paid by him. He makes an entry showing that on a particular occasion he paid ,nore than he really did pay. The question is, whether this false entry was accidental or inten- tional. The fact that for a period of two years A made other similar false entries in the same book, the false entry being in favour of each case in A, is deemed to be relevant.22 (c) The question is, whether the administration of poison to A, by Z, his wife, in September, 1848, was accidental or intentional. The facts that 13, C, and D (A's three sons), had the same poison administered to them in December, 1848, March, 1849, and April, 1849, and that the meals of all four were prepared by Z, are deemed to be relevant, though Z was indicted separately for murdering A, B, and C, and attempting to murder D.23 (d) A promises to lend money to B on the security of a policy of insurance which B agrees to effect in an insurance company of his choosing. B pays the first premium to the company, but A refuses to lend the money except upon terms which he intends B to reject, and which B rejects accordingly. The fact that A and the insurance company have been engaged in similar transactions is deemed to be relevant to the question whether the receipt of the money by the company was fraudulent.24 South 'Wales, [1894], A. C. 57, decided after the author had written the foregoing note, where the judgment in R. v. Gray was mentioned without disapproval in the judgment of the Judicial Committee ; the decision in this case was that on a charge of murder of a baby, evi- dence of children's remains being found on premises occupied by the accused was admissible. 22/,'. v. Richardson, 1860, 2 F. & F. 343. 23 7?. v. Geering, 1849, 18 L. J. M. C. 215; cf. R. v. Garner, 1863 3 F. & F. 681. See, too, Makin v. The Attorney-General for New South Wales, [1894], A. C. 57. The earlier cases were discussed in R. v. Neill (or Cream), tried at the Central Criminal Court in Octo- ber, 1892, when Hawkins, J., admitted evidence of subsequent adminis- trations of strychnine by the prisoner to persons other than and unconnected with the woman of whose murder the prisoner was then convicted. See. too, R. v. Rhodes, ante, p. 63, note 9. 2< Blake v. Albion Life Assurance Society, 1878, 4 C. P. D. 94. 88 A DIGEST OF [Part I. AMERICAN NOTE. General. (See also notes under Article 11.) Authorities. — 1 Taylor on Evidence ( Chamberlayne's 9th ed. ), p. 257*5 ; 1 Greenleaf on Evidence (15th ed.), sec. 53, note; Dearborn v. Union Nat. Bank, 61 Me. 369; Ossipee v. Grant, 59 N. H. 70; State v. McDonald, 14 R. I. 270; McCasker v. Enright, 64 Vt. 488, 33 Am. St. Rep. 938; State v. Kelley, 65 Vt. 531; Hoxie v. Home Ins. Co., 32 Conn. 21, 85 Am. Dec. 240; Hawes v. State, 88 Ala. 37, 67; State v. Stice, 88 la. 27; Dawson v. State, 32 Tex. App. 535; Goersen V. Com., 99 Pa. 388, 106 Pa. 477; Wood v. U. S., 16 Pet. 342, 360; Bottomly v. U. S., 1 Story R. 135, 143; Friend v. Hamill, 34 Md. 298, 306; Com. v. McCarthy, 119 Mass. 354; Com. v. Robinson, 146 Mass. 571, 16 N. E. 152; Com. v. Eastman, 1 Cush. (Mass.) 189, 48 Am. Dec. 595; Com. v. Bradford, 126 Mass. 42. A bought a vessel, on which he held a mortgage, and insured it with B. The vessel was lost on her next voyage, and A brought suit on the policy of insurance. B claimed that the vessel was fraudulently lost by the master's misconduct, to which A was privy, and that the insur- ance was fraudulently procured with intent that the vessel should be lost. The fact that a series of losses, under suspicious circumstances, of other vessels owned by one of the same owners, and mortgaged in the same manner to A, has occurred, is relevant to show that the loss of the vessel in question was not accidental. Hoxie v. Home Ins. Co., 32 Conn. 21, 85 Am. Dec. 240. So to show that ordinary care has been used in a particular in- stance the usual practice of others in the same business or employ- ment under similar circumstances is relevant. Holland v. Tenn. Coal Co., 91 Ala. 444; Reese v. Hershey, 163 Pa. 253; Railioay Co. v. Manchester Mills, 88 Tenn. 653; Doyle v. St. Paul, etc., R. Co., 42 Minn. 79: Whitsctt v. Chicago, etc., 67 la. 150. A series of like acts, the expression of a system of conduct, may be shown to prove habit, etc. Baulec v. 2V. Y., etc., R. Co., 59 N. Y. 356; Lanpher v. Clark, 149 N. Y. 472. But this rule must be lim- ited in its scope. See Wooster v. Broadicay, etc., R. Co., 72 Hun, 197; Ross v. Ackerman, 46 N. Y. 210: cases under article 10. Illustration (a). — See People v. Dimick, 107 N. Y. 13; Faucet v. Nichols, 64 X. Y. 383, 2 Wklv. Dig. 332. Chap. III.] THE LAW OF EVIDENCE. 89 Illustration (b). — See Rankin v. Blackwell, 2 Johns. Cas. 198. Illustration (c). — See Weyman v. People, 4 Hun, 511, 578, 62 N. Y. 623. Maryland. Authority.— friend v. Hamill, 34 Md. 298, 306. Evidence showing a scheme devised by the defendant for obtaining goods by false pretense is admissible. Carnell v. State, 85 Md. 1. System of selling liquor by seeming to give it away admitted to prove intent. Archer v. State, 45 Md. 33. But former crimes barred by the Statute of Limitations cannot be proved. World v. State, 50 Md. 49. Pennsylvania. Authorities. — Goersen v. Com., 99 Pa. 388; Swan v. Com., 104 Pa. 218; Funk v. Ely, 45 Pa. 444. A general fraudulent scheme to obtain goods by falsely represent- ing one's credit is admissible. White v. Rosenthal, 173 Pa. 175. To show collusion between a minor and defendant in securing property from plaintiff by the minor's falsely representing his age, other similar systematic frauds of the minor are admissible. A>/f v. Landis, 110 Pa. 204. So as to show that ordinary care has been used in a particular instance the usual practice of others in the same business or employ- ment under similar circumstances is relevant. Reese v. Hershey, 163 Pa. 253. Article 13.* existence of course of business when deemed to be relevant. When there is a question whether a particular act was done, the existence of any course of office or business ac- cording to which it naturally would have been done, is a relevant fact. When there is a question whether a particular person * See Note VII. 90 A DIGEST OF [Part I. held a particular public office, the fact that he acted in that office is deemed to be relevant. 25 When the question is whether one person acted as agent for another on a particular occasion, the fact that he so acted on other occasions is deemed to be relevant. Illustrations. (a) The question is, whether a letter was sent on a given day. The post-mark upon it is deemed to be a relevant fact. 26 (b) The question is, whether a particular letter was despatched. The facts that all letters put in a certain place were, in the common course of business, carried to the post, and that that particular letter was put in that place, are deemed to be relevant.27 ( c) The question is, whether a particular letter reached A. The facts that it was posted in due course properly addressed, and was not returned through the Dead Letter Office, are deemed to be relevant.28 (d) The facts stated in illustration (d) to the last article are deemed to be relevant to the question whether A was agent to the company .29 AMERICAN NOTE. General. Authority. — Abbott's Trial Evidence (2d ed.), pp. 52, 237. Course of business. — Union Bank v. Stone, 50 Me. 595, 79 Am. Dec. 631; Hall v. Brown, 58 N. H. 93; Bussard v. Levering, 6 Wheat. 102; Lindenbarger v. Bell, 6 Wheat. 104; U. S. v. Babcock, 3 Dillon C. C. (U. S.) 571; Knickerbocker Ins. Co. v. Pendleton, 115 U. S. 539; -' i Ph. Ev. 449; Roscoe's N. P. 43; Taylor, s. 171. 2" K. v. Canning, 1754, 19 S. T. 370. 27 ITrthrrinoton v. Kemp, 1815, 4 Camp. 193; and see Skilbeck v. Garbett, 1845, 7 Q. B. 846, and Trotter v. Maclean, 1879, 13 Ch. Div. 574. 28 Warren v. Warren, 1834, 1 C. M. & R. 250; Woodcock v. Houlds- trorth, 1846, 16 M. &. W. 124. Other cases on this subject are col- lected in Roscoe's Nisi Prius, p. 374. 29 Blake v. Albion Life Assurance Society, 1878, 4 C. P. D. 94. Chap. III.] THE LAW OF EVIDENCE. ^ 91 Dunlop v. U. S., 165 U. S. 486; First Nat. Bank v. McMonigle, 69 Pa. St. 156; State v. Taylor, 126 Mo. 531, 8 Am. Rep. 236; Dtoight v. Brown, 9 Conn. 83. Holding office.— State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409; Bank U. S. v. Dandridge, 12 Wheat. 64, 70; State v. Row, 81 la. 138; Golder v. Bressler, 105 111. 419, 428; Fowler v. #eeoe, 9 Mass. 231. Agency. — Kent v. Tyson, 20 N. H. 121; Perry v. Dioelling-House Ins. Co., 67 N. H. 291, 33 Atl. 731, 26 Ins. L. J. 120; Austrian & Co. v. Springer, 94 Mich. 343, 34 Am. St. Rep. 350; Thurber v. Ander- son, S8 111. 167; Gallinger v. Lafce /Snore Co., 67 Wis. 529; Putnam v. Home Ins. Co., 123 Mass. 324, 25 Am. Rep. 93; Doyle v. Corey, 170 Mass. 337, 49 N. E. 651; Kellcy v. Lindsey, 7 Gray (Mass.), 287; 72oc/ie v. Ladd, 1 Allen (Mass.), 436. Mailing letter, etc. — Illustration (c). Huntley v. IFftittier, 105 Mass. 391, 7 Am. Rep. 536; Munn v. Baldwin, 6 Mass. 316; Hedden v. Roberts, 134 Mass. 38; Marston v. Bigelow, 150 Mass. 45, 22 N. E. 71, 5 L. R. A. 43 ; Briggs v. Hervey, 130 Mass. 186 ; Inhabitants of Au- gusta v. Shepard, 21 Me. (8 Shep.) 298; La6re v. Sraifft, 62 N. H. 663; Woodman v. Jones, 8 N. H. 344; Russell v. Buckley, 4 R. I. 525, 70 Am. Dec. 167; Oakes v. Weller, 16 Vt. 63; Com. v. Kimball, 108 Mass. 473; tfoZh/ v. Boston Gaslight Co., 8 Gray (Mass.), 123,69 Am. Dec. 233; Briggs v. Hervey, 130 Mass. 187: Rosenthal v. WaMcer, 111 U. S. 185; Folsom x. Cook, 115 Pa. St. 539; HcFarland v. Acci- e, 161 Pa. 115. Article 16.* who may make admissions on behalf of others, AND WHEN. Admissions may be made on behalf of the real party to any proceeding — By any nominal party to that proceeding ; By any person who, though not a party to the proceeding, has a substantial interest in the event; By any one who is privy in law, in blood, or in estate to any party to the proceeding, on behalf of that party. A statement made by a party to a proceeding may be an admission whenever it is made, unless it is made by a person suing or sued in a representative character only, in which case [it seems] it must be made whilst the person making it sustains that character. A statement made by a person interested in a proceeding, or by a privy to any party thereto, is not an admission unless it is made during the continuance of the interest which entitles him to make it. Illustrations. (a) The assignee of a bond sues the obligor in the name of the obligee. An admission on the part of the obligee that the money due has been paid is deemed to be relevant on behalf of the defendant.* * See Note X. * Hanson v. Parker, 1749, 1 Wils. 257. Chap. IV.] THE LAW OF EVIDENCE. Ill (6) An admission by the assignee of the bond in the last illustra- tion would also be deemed to be relevant on behalf of the defendant. (c) A statement made by a person before he becomes the assignee of a bankrupt is not deemed to be relevant as an admission by him in a proceeding by him as such assignee.5 (d) Statements made by a person as to a bill of which he had been the holder are deemed not to be relevant as against the holder, if they are made after he has negotiated the bill. AMERICAN NOTE. General. Authorities. — 1 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 670 et seq.; 1 Greenleaf on Evidence (15th ed.), sec. 169 et seq; Bulkley v. London, 3 Conn. 84; Coit v. Tracy, 8 Conn. 277; Scripture v. New- comb, 16 Conn. 591. Compare Smith v. Vincent, 15 Conn. 4, 11, as modifying the rule of the text. Wing v. Bishop, 3 Allen (Mass.), 456. Nominal party. — Tenney v. Evans, 14 N. H. 343. But the rule of the text is repudiated or modified in many States. 1 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 678. See Butler v. Millet, 47 Me. 492 ; Gillighan v. Tebbets, 33 Me. 360 ; Sargeant v. Sar- geant, 18 Vt. 371; Ealloran v. Whitcomb, 43- Vt. 306; Day v. Bald- win, 34 la. 380; Oioings v. Low, 5 Gill & J. (Md.) 134; Palmer v. Gassin, 2 Cranch C. C. (U. S.) 66; Thompson v. Drake, 32 Ala. 99; Dazey v. Mills, 5 Gilman (111.), 67; Welch v. Mandeville, 1 Wheat. (U. S.) 233; Cooper v. Mayhew, 40 Mich. 528; Bragg v. Geddes, 93 111. 39. Instance. — The declarations of the assignor of a chose in action, made after the assignment, are not admissible against the assignee. Wing v. Bishop, 3 Allen (Mass.), 456; Butler v. Millet, 47 Me. 492; Sargeant v. Sargeant, 18 Vt. 371. Person with substantial interest. — Bigeloio v. Foss, 59 Me. 162; Fickett v. Smith, 41 Me. 65, 66 Am. Dec. 214; Earle v. Bearce, 33 Me. 337; Gooch v. Bryant, 13 Me. (1 Shep.) 3S6; Pike v. Wiggin, 8 N. H. 356; Hamblett v. Hamblett, 6 N. H. 333; Rich v. Eldredge, 42 N. H. 153; Carlton v. Patterson, 29 N. H. (9 Fost.) 580; Mathew- SFenwick v. Thornton, 1827, M. & M. 51 (by Lord Tenterden). In Smith v. Morgan, 1839, 2 M. & R. 257, Tindal, C. J., decided exactly the reverse. QPocock v. Billing, 1824, 2 Bing. 269. 112 A DIGEST OF [Part!. son v. Eureka Powder Works, 44 N. H. 289; Taylor v. Grand Trunk R. R. Co., 48 N. H. 304; Barber's Admr. v. Bennett, 60 Vt. 662; Bayley v. Bryant, 41 Mass. (24 Pick.) 198; Smith v. Aldrich, 94 Mass. (12 Allen) 553; Lawrence v. Boston, 119 Mass. 126; Ryan v. Merriam, 4 Allen (Mass.), 77; Butler v. Damon, 15 Mass. 223; Terra* v. McRae, 14 Miss. (6 Sm. & M.) 133; &*a*e v. Alien, 27 N. C. (5 Ired.) 36; Wheeler v. Hambright, 9 Serg. & R. (Pa.) 390. But see Hamlin v. Fitch, Kirby (Conn.), 174; Stratford v. Sanford, 9 Conn. 275, 284; Bucknam v. Barnum, 15 Conn. 74. The interest must be a substantial one. The admission of the holder of a bare legal title is not competent. Townsend Sav. Bank v. Todd, 47 Conn. 217. Privies in law.— Holt v. Walker, 26 Me. (13 Shep.) 107, 45 Am. Dec. 98; Putnam v. Osgood, 52 N. H. 148; Alger v. Andrews, 47 Vt. 238; Daggett v. Simonds, 173 Mass. 340, 53 N. E. 907, 46 L. R. A. 332; Clouser v. Ruckman, 104 Tnd. 588; McNight v. McNight, 20 Wis. 446; #cfcer* v. Triplett, 48 Ind. 174, 17 Am. Rep. 735; Hughes v. Z). cC- tf. CanaZ Co., 176 Pa. St. 254, 35 Atl. 190. Instances. — Declarations of one in the possession of personal prop- erty that it is owned by another are deemed to be relevant in favor of the person declared to be the owner, as against an officer who has attached it as the property of the declarant. Putnam v. Osgood, 52 N. H. 148. Privies in blood. — Supporting text: Dale v. Gower, 24 Me. (11 Shep.) 563; Tilton v. Emery, 17 N. H. 536; Pike v. Hayes, 14 N. H. 19, 40 Am. Dec. 171; Little v. Gibson, 39 N. H. 505; Baker v. Haskell, 47 N. H. 479, 93 Am. Dec. 455; Hunt v. Haven, 56 N. H. 87; Hurlburt v. Wheeler, 40 N. H. 73; Wheeler v. Wheeler's Estate, 47 Vt. 637; Gilbert v. Vail, 60 Vt. 261, 14 Atl. 542; Davis v. Nelson, 66 la. 171; McSweeney v. McMillen, 96 Ind. 298; Crosman v. Fuller, 17 Pick. fM;iss.) 171; Plimpton v. Chamberlain, 4 Gray (Mass.), 320; Wilson v. Terry. 9 Allen (Mass.), 214; Fellows v. Smith, 130 Mass. 378; White v. Loring, 24 Pick. (Mass.) 319; Hodges v. Hodges, 2 Cush. (Mass.) 455; Heywood v. Heywood, 10 Allen (Mass.), 105. Instance. — The declarations of an intestate that he had given his son something handsome, and, if he did well for him, should give him more, that he had held a writing against him, not a note, but had made him a present of it; and that he had had claims against him, but had none then, — being made by the ancestor against his right and interest, are deemed to be relevant against, and binding on, Chap. IV.] TME LAW OF EVIDENCE. 113 those claiming under him and in his right. Wheeler v. Wheeler's Estate, 47 Vt. 637. Privies in estate. — Royal v. Chandler, 79 Me. 265, 1 Am. St. Rep. 305, 9 Atl. 675; Holt v. Walker, 26 Me. (13 Shep.) 107; Treat v. Strickland, 23 Me. (10 Shep.) 234; Littlefield v. Getchell, 32 Me. 390; Crane v. Marshall, 16 Me. (4 Shep.) 27, 33 Am. Dec. 631; Peabody v. Hcwett, 52 Me. 33; Adams v. French, 2 N. H. 387; Morrill v. Foster, 33 N. H. 379; Inhabitants of South Hampton v. Fowler, 54 N. H. 197; Smith v. Poioers, 15 N. H. 546; Pike v. Hayes, 14 N. H. 19, 40 Am. Dec. 171; Hobbs v. Crane, 22 N. H. (2 Fost.) 130; Dow v. Jewell, 18 N. H. 340, 45 Am. Dec. 371; Felloivs v. Fellows, 37 N. H. 75; Rand v. Dodge, 17 N. H. 343; Smith v. Putnam, 62 N. H. 369; Wood v. Fiske, 62 N. H. 173; Bennett v. Camp, 54 Vt. 36; Beecher v. Parmelee, 9 Vt. 352; Dotews v. Belden, 46 Vt. 674; HaZe v. Rich, 48 Vt. 217; Co/7m v. Cole, 67 Vt. 226, 31 Atl. 313; Simpson v. Dix, 131 Mass. 179; Pickering v. Reynolds, 119 Mass. Ill; fft/de v. Middlesex County, 2 Gray (Mass.), 267; Osgood v. Coates, 1 Allen (Mass.), 77; Blake v. Everett, 1 Allen (Mass.), 248; T^er v. Mather, 9 Gray (Mass.), 177; Foster v. i7a«, 12 Pick. (Mass.) 89, 22 Am. Dec. 400; Inhabitants of West Cambridge v. Inhabitants of Lexington, 2 Pick. (Mass.) 536; Bosworth v. Sturtevant, 2 Cush. (Mass.) 392; Randegger v. Ehr- hardt, 51 111. 101; Magee v. Raiguel, 64 Pa. St. 110; Gratz v. Beates, 45 Pa. St. 495; Gw/ v. f/aH, 3 Murph. (N. C.) 150; PooZ v. Morris, '29 Ga. 374, 74 Am. Dec. 68 ; Bowen v. Chase, 98 U. S. 254 ; Dooley v. Baynes, 86 Va. 644; Tai/Zor v. Hess, 57 Minn. 96. Instances. — And statements by the owner of land or by one claim- ing title relative to the character of his possession and title are ad- missible against persons in privity with the declarant. Creighton v. Hoppis, 99 Ind. 369; Mississippi Co. v. Vowels, 101 Mo. 225; Oarber v. Doersom, 117 Pa. St. 225; Lacy v. Tenn., etc., R. Co., 92 Ala. 246; Sharp v. Blackenship, 79 Cal. 411. In a contest of the will, to which B is a party, the admissions of B are relevant to the question in controversy. Fay v. Feely, 18 R. I. 715, 38 Atl. 342. When made — Parties. — Supporting text: McCobb v. Healy, 17 Me. (5 Shep.) 158; Taylor v. Grand Trunk R. R. Co., 48 N. H. 304; Tufts v. Hayes, 5 N. H. 452; Straw v. Jones, 9 N. H. 400; Perkins v. Towle, 59 N. H. 583; Barber's Admr. v. Bennett, 60 Vt. 662, 15 Atl. 348, 6 Am. St. Rep. 141, 1 L. R. A. 224 (citing this article); 114 A DIGEST OF [Part I. Goldsborough v. Baker, 3 Cranch C. C. 48 ; Dillon v. Chouteau, 7 Mo. 386; Duncan v. Laxmence, 24 Pa. St. 154; Klein v. Hoffheimer, 132 U. S. 367, 10 Sup. Ct. 130; Gordon v. Stubbs, 30 La. Ann. 625; /2-#«, 1 Pa. 208; Afc- lldowny v. H'i7/ia»is. 28 Pa. 492. Admissions of privies in estate are admissible only if made while interest continues. McLaughlin v. McLaughlin, 91 Pa. 462. Declarations of a grantor after parting with title are not admis- sible against grantee. Baldwin v. Slier, 191 Pa. 432. Statements of a grantor of land after the transfer, made in pur- suance of a conspiracy to defraud creditors, are admissible. Souder V. Schechterly, 91 Pa. S3. Declarations of a transferrer while still in possession may be ad- missible, Pier v. Duff, 63 Pa. 59. Article 17.* admissions by agents and persons jointly interested with parties. Admissions may be made by agents authorised to make them either expressly or by the conduct of their principals : but a statement made by an agent is not an admission merely because if made by the principal himself it would have been one. A report made by an agent to a principal is not an ad- mission which can be proved by a third person. 7 Partners and joint contractors are each other's agents for the purpose of making admissions against each other in relation to partnership transactions or joint contracts. * See Note XI. T Re Devala Company, 1883, 22 Ch. Div. 593. Chap. IV.] THE LAW OF EVIDENCE. 119 Barristers and solicitors are the agents of their clients for the purpose of making admissions whilst engaged in the actual management of the cause, either in court or in cor- respondence relating thereto; but statements made by a barrister or solicitor on other occasions are not admissions merely because they would be admissions if made by the client himself. The fact that two persons have a common interest in the same subject-matter does not entitle them to make admis- sions respecting it as against each other. In cases in which actions founded on a simple contract have been barred by the Statute of Limitations no joint contractor or his personal representative loses the benefit of such statute, by reason only of any written acknowledg- ment or promise made or signed by [or by the agent duly authorised to make such acknowledgment or promise of] any other or others of them [or by reason only of payment of any principal, interest, or other money, by any other or others of them]. 8 A principal, as such, is not the agent of his surety for the purpose of making admissions as to the matters for which the surety gives security. Illustrations. (a) The question is, whether a parcel, for the loss of which a Rail- way Company is sued, was stolen by one of their servants. State- ments made by the station-master to a police officer, suggesting that §9 Geo. IV, c. 14, s. 1. The words in the first set of brackets were added by 19 & 20 Vict. c. 97, s. 13. The words in the second set by s. 14 of the same Act. The language is slightly altered. 120 A DIGEST OF [Part I. the parcel had been stolen by a porter, are deemed to be relevant, as against the railway, as admissions by an agent.'J ( b ) A allows his wife to carry on the business of his shop in his absence. A statement by her that he owes money for goods supplied to the shop is deemed to be relevant against him as an admission by an agent. 10 (c) A sends his servant, B, to sell a horse. What B says at the time of the sale, and as part of the contract of sale, is deemed to be a relevant fact as against A, but what B says upon the subject at some different time is not deemed to be relevant as against AH [though it might have been deemed to be relevant if said by A himself]. (d) The question is, whether a ship remained at a port for an unreasonable time. Letters from the plaintiff's agent to the plaintiff containing statements which would have been admissions if made by the plaintiff himself are deemed to be irrelevant as against him.12 (e) A, B, and C sue D as partners upon an alleged contract re- specting the shipment of bark. An admission by A that the bark was his exclusive property and not the property of the firm is deemed to be relevant as against B and C.13 (f) A, B, C, and D make a joint and several promissory note. Either can make admissions about it as against the rest. 14 (g) The question is, whether A accepted a bill of exchange. A notice to produce the bill signed by A's solicitor and describing the bill as having been accepted by A is deemed to be a relevant fact. 1 ^ (h) The question is, whether a debt to A, the plaintiff, was due from B, the defendant, or from C. A statement made by A's solicitor to B's solicitor in common conversation that the debt was due from C is deemed not to be relevant against A.ig (i) One co-part-owner of a ship cannot, as such, make admissions against another as to the part of the ship in which they have a common 9 Kirkstall Brewery v. Furness Ry., 1874, L. R. 9 Q. B. 468. 10 Clifford v. Burton, 1823, 1 Bing. 199. n Helyeav v. Hauke, 1803, 5 Esp. 72. WLanyhom v. Allnutt, 1812, 4 Tau. 511. 13 Lucas v. Dc La Cour, 1813, 1 M. & S. 249. uWhitcomb v. Whitting, 1781, 1 S. L. C. 644. 15 Holt v. Squcrc, 1825, By. & Mo. 282. ™Petch v. Lyon, 1846, 9 Q. B. 147. Chap. IV.] THE LAW OF EVIDENCE. 121 interest, even if he is co-partner with that other as to other parts of the ship.i" (j) A is surety for B, a clerk. B being dismissed makes statements as to sums of money which he has received and not accounted for. These statements are not deemed to be relevant as against A, as ad- missions.^ AMERICAN NOTE. General. Authorities. — 1 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 690 et scq.; McKelvey on Evidence, p. 100 et seq. Agents. — The admission must concern some act of agency which is part of the res gestce. Cliquot's Champagne, 3 Wall. 114, 140; U. S. v. Brig Burdett, 9 Pet. 682, 689 ; Vicksburg, etc., R. Co. v. O'Brien, 119 U. S. 99, 104; Giberson v. Patterson Mills Co., 174 Pa. St. 369; Ohio, etc., R. Co. v. Stein, 133 Ind. 243; Paterson v. Wabash, etc., R. Co., 54 Mich. 91; Xenia Bank v. Stewart, 114 U. S. 224; Carney v. Hennessey, 74 Conn. 107. The declarations of an agent, in the course of his agency, are evi- dence against the principal. Perkins v. Burnet, 2 Root (Conn.), 30; Mather v. Phelps, 2 Root (Conn.), 150; N. & W. R. R. Co. v. Cahill, 18 Conn. 492. See, also, Southington Eccl. Society v. Cridley, 20 Conn. 204; Plumb v. Curtis, 66 Conn. 154. But not his declarations as to acts previously done by him, as agent. Fairfield County Turnpike Co. v. Thorp, 13 Conn. 128. Before the declarations of one claimed to be an agent of the party can be received, his agency must be proved aliunde. Fitch v. Chapman, 10 Conn. 12; Builders' Supply Co. v. Cox, 68 Conn. 381. The admissions of a public official are competent evidence to bind the public corporation, when made in connection with some act within the scope of his duties. Smythe v. Bangor, 72 Me. 252 ; Gray v. Rol- linsford, 58 N. H. 253. The admission of a mere inhabitant is incompetent. Petition of Landoff, 34 N. H. 163. 11 J aggers v. Binnings, 1815, 1 Star. 64. is Smith v. Whippingham, 1833, 6 C. & P. 78. See also Evans v. Beattie, 1803, 5 Esp. 26; Bacon v. Chesnety, 1816, 1 Star. 192; Caer- marthen R. C. v. Manchester R. C, 1873, L. R. 8 C. P. 685. 122 . A DIGEST OF [Part I. Either a wife or husband may be an agent of the other party to the relation, but the agency must be shown; it is not presumed. Good- rich v. Tracy, 43 Vt. 314; Phelps v. James, 86 la. 399; Wright v. Toicle, 67 Mich. 255. Partners.— Fickett v. Swift, 41 Me. 65, 66 Am. Dec. 214. In an action against former copartners, upon a plea of the statute of limitations, evidence of an acknowledgment by one, after the dis- solution, and when himself insolvent, is admissible against both. Aus- tin v. Bostwick, 9 Conn. 501. See also Bissell v. Adams, 35 Conn. 299. Sustaining the text so far as admissions made during the existence of the partnership are concerned. Griffin v. Stearns, 44 N. H. 498 ; Western Assurance Co. v. Towle, 65 Wis. 247 ; Slipp v. Hartley, 50 Minn. 118. While there is a conflict on the point, some authorities have held that the admissions of a partner as to acts during the existence of the partnership are admissible to charge the partnership, if made after dissolution. Parker v. Merrill, 6 Greenl. (Me.) 41; Einkley v. Gilli- gan, 34 Me. 101; Loomis v. Loomis, 26 Vt. 198, 203; Rich v. Flanders, 39 N. H. 304, 339. The fact of partnership must first be shown. Bundy v. Bruce, 61 Vt. 619; HcNeilan's Estate, 167 Pa. St. 472; Armstrong v. Potter, 103 Mich. 409; Vaunoy v. Klein, 122 Ind. 416; Pleasants v. Faut, 22 Wall. 116; McClurg v. Howard, 45 Mo. 365. Compare Davis v. Po- land, 92 Va. 225 ; Feigley v. Whittaker. A retiring partner is not bound by the admissions of the remain- ing partners made after his retirement.- Bell v. Morrison, 1 Pet. 357; Wilson v. Waugh, 101 Pa. St. 233; Gates v. Fisk, 45 Mich. 522; Nat. Bank of Commerce v. Meadcr, 40 Minn. 325; Maxey v. Strong, 53 Miss. 280. Joint contractors. — Bound v. Lathrop, 4 Conn. 339; Pierce v. Roberts, 57 Conn. 40; Dennis v. Williams, 135 Mass. 28; Martin v. Root, 17 Mass. 222; Hunt v. Bridgham, 2 Pick. (Mass.) 581; Am- herst Bank v. Root, 2 Mete. (Mass.) 522. The acknowledgment of one of several joint makers of a promissory note takes it out of the statute as against the others. Bound v. La- throp, 4 Conn. 338, 339. And this, although the others were only sureties for the first, if the promise was not collusively made. Clark v. Sigourney, 17 Conn. 516; Caldwell v. Sigourney, 19 Conn. 44; Block v. Dorman, 51 Mo. Chap. IV.] THE LAW OF EVIDENCE. 123 31; Schindel v. Gates, 46 Md. 604. Contra, Campbell v. Brown, 86 N. C. 376; Kallenbach v. Dickinson, 100 111. 427. Modifying rule of text.— Clark v. Burn, 86 Pa. St. 502; Wil- loughby v. Irish, 35 Minn. 63; Steele v. Souder, 20 Kan. 39; McDer- tnjtt v. i of'man, 70 Pa. St. T2, explaining 12 Pa. St. 101; Railroad v. ,S7jw£c, 28 Kan. 394, 42 Am. Rep. 163. Attorneys. — Holley v. Young, 68 Me. 215; Saunders v. McCarthy, 8 Allen (Mass.), 42. The admissions of an attorney may be either oral or written. Loomis v. N. Y., etc., R. R. Co., 159 Mass. 39. Statute of limitations. — The paragraph next to the last of the text (with reference to the statute of limitations) is based, as seen in the notes, upon English statutes. At common law an oral acknowledg- ment has the same effect as a written one. Tn the absence of statute the admissions of one joint contractor start the running of the stat- ute of limitations against the others anew. Shepley v. Watcrhouse, 22 Me. 497; Woonsocket Inst. v. Ballon, 16 R. I. 351. Sureties. — Supporting text. Chelmsford Co. v. Demarest, 7 Gray (Mass.), 1. Compare Bank of Brighton v. Smith, 12 Allen (Mass.), 243. Illustration (a).— Green v. B. & L. R. R. Co., 128 Mass. 221; B. iljle against the party charged with adultery. Bcrckmans v. Berckmans, 16 X. J. Eq. 122; Kloman v. Kloman, 62 N. J. Eq. 153. Action against a constable. — Second paragraph of text. Stout v. Hopping, 1 Hal. 125. 21 Jarrett v. Leonard, 1814, 2 M. & S. 265 (adapted to the new law of bankruptcy) . Chap. IV.] THE LAW OF EVIDENCE. 133 Maryland. Authorities. — Declarations of third parties are generally inadmis- sible. City Bank v. Bateman, 1 H. & J. 104; Forrester v. State, 46 Md. 154: Treuseh v. Clark, 51 Md. 162. Admissions of a stranger to the cause at issue are not admissible. Herrick V. Sicomley, 56 Md. 439. Statements of third parties may be admissible because they were a part of the transaction in question. Kolb v. Whitely, 3 G. & J. 188. Statements by one representative of a deceased person are not binding on another representative of such deceased. Walkup v. Pratt, 5 H. & J. 51. In an action against a bank to recover money paid out by it on alleged forged checks, the confession of the forger is not admissible. Hardy v. Bank, 51 Md. 562. In a suit on a promise given in consideration for the forbearance on plaintiff's part to sue on a claim against a third party, to prove the existence of such claim the admissions of the third party ma\ be introduced. Boicen v. Tipton, 64 Md. 275. Pennsylvania. Statements by strangers. — Sustaining text. Bovard v. Wallace, 4 S. & R. 499; Xussear v. Arnold, 13 S. & R. 323; Boyd v. Ely, 8 Watts, 66; Dietrich v. Dietrich, 4 Watts, 167; Haubergcr v. Root, 6 W. & S. 431; Shaw V. Boom Co., 125 Pa. 324: Lawall v. Uroman, 180 Pa. 532. Statements of the insured made after issuance of the policy af- fecting the good faith of bis statements in the application are not admissible as against the beneficiaries. Hermany v. Mut. Life Assn., 151 Pa. 17. Admissions of a principal not competent against his surety. Kickols v. Jones, 166 Pa. 599. Statements by a stranger not in the presence of a party are not admissible. Chambers v. Davis, 3 Whart. 40. Declarations of one legatee not admissible against the others, for their interests are not joint. Clark v. Morrison, 25 Pa. 453; Dotts v. Fetzer, 9 Pa. 88. In ejectment, statements by a father are not evidence against the son, in the absence of privity of estate. Emery v. Harrison, 13 Pa. 317. 134 A DIGEST OF [Part I. Article 19.* admission by person referred to by party. When a party to any proceeding expressly refers to any other person for information in reference to a matter in dispute, the statements of that other person may be admis- sions as against the person who refers to him. Illustration. The question is, whether A delivered goods to B. B says " if C " (the carman) "will say that he delivered the goods, I will pay for them." C's answer may as against B be an admission.22 AMERICAN NOTE. General. Authorities. — 10 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 701; 1 Greenleaf on Evidence (loth ed.), sec. 182. Supporting text. — Chapman v. Twitchell, 37 Me. 59, 58 Am. Dec. 773; Folsom v. Batchelder, 22 N. H. 47; Chadsey v. Greene, 24 Conn. 562; Gott v. Dinsmore, 111 Mass. 45; Proctor v. Old Colony R. R. Co., 154 Mass. 251; Com. v. Yose, 157 Mass. 393; Beebe v. Knapp, 28 Mich. 53; Allen v. Killinger, 8 Wall. 480; Rosenbury v. Angell, 6 Mich. 508. Compare Adler- Goldman Co. v. Adams Express Co., 53 Mo. App. 284. The reference must be for the purpose of giving information, and the statements must be confined to the matter as to which reference was made. Allen v. Killinger, 8 Wall. 480; Rosenbury v. Angell, 6 Mich. 508. * See Note XIII. "•Daniel v. Pitt, 1808, 1 Camp. 366, n. See, too, R. v. Mallory, lfc«4, 13 Q. B. D. 33. This is a weaker illustration than Daniel v. Pitt. Chap. IV.] THE LAW OF EVIDENCE. 135 A conversation through an interpreter may be proved as an admis- sion. Com. v. Vose, 157 Mass. 393; Miller v. Lathrop, 50 Minn. 91. The statements can be shown only so far as they refer to the sub- ject of the injury. Lambert v. People, 76 N. Y. 220; Duval v. Coven- hover, 4 Wend. 561. Communications through an interpreter may be proved as admis- sions. Wright v. Maseras, 56 Barb. 521. Article 20.* admissions made without prejudice. No admission is deemed to be relevant in any civil action if it is made either upon an express condition that evidence of it is not to be given, 23 or under circumstances from which the judge infers that the parties agreed together that evi- dence of it should not be given, 24 or if it was made under duress. 25 AMERICAN NOTE. General. Authorities. — 1 Am. & Eng. Encyclopaedia of Law (2d ed.), pp. 715-717; 2 Taylor on Evidence (Chamberlayne's 9th ed.), p. 5548. Compromises. — Offers of compromise are not admissible. Green- field v. Kennett, 69 N. H. 419, 45 Atl. 233; Daniels v. Woonsocket, 11 R. I. 4, 39 N. E. 644: Webber v. Dunn, 71 Me. 331 ; Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527, 23 L. Ed. 868; Harrison v. Trickctt, 57 111 App. 515; Reynolds v. Manning, 15 Md. 510, 526; Kassing v. Walter, 65 N. W. (la.) 832; Fink v. Lancashire Ins. Co., 00 Mo. App. 673; Greve v. Wood-Harmon Co., 173 Mass. 45; Feibel- * See Note XIV. 23 Cory v. Bretton, 1830, 4 C. & P. 462. 24 Paddock v. Forester, 1842, 3 M. & G. 903. 25 titockfleth v. De Tastet, 1814, per Ellenborough, C. J., 4 Camp. 10. 136 A. DIGEST OF [Part I. man v. Manchester Fire Ins. Co., 108 Ala. 180, 19 So. 540; Fowles v. Allen, G4 Conn. 351; Perkins v. Concord R. R. Co., 44 N. H. 223; Montgomery v. Allen, 84 Mich. 656; Louisville, etc., R. Co. v. Wright, 115 Ind. 378; Reynolds v. Manning, 15 Md. 510. But admissions of facts in the coarse of conversations with refer- ence to compromise are competent. Beaudette v. Gagne, 87 Me. 534 r 33 Atl. 23; Eastman v. Amoskeag Mfg. Co., 44 N. H. 143, 82 Am. Dec. 201; Jenness v. Jones, 44 Atl. (N. H.) 607; Stanford v. Bates, 22 Vt. 546 ; Boon v. Rovey, 49 Vt. 293 ; Chickeiing v. Brooks, 61 Vt. 554, 18 Atl. 144; Hartford Bridge Co. v. Granger, 4 Conn. 148 ; Fuller v. Hampton, 5 Conn. 426 ; Hotoard Ins. Co. v. Z7ope Mut. Ins. Co., 22 Conn. 403 ; Broschart v. Tuttle, 59 Conn. 24 ; Bassett v. Shares, 63 Conn. 44 ; Arthur v. James, 28 Pa. St. 236 ; McNiel v. Holbrook, 37 U. S. (12 Pet.) 84, 9 L. Ed. 1009; Durgin v. Somers, 117 Mass. 55; Afcers v. Demond, 103 Mass. 318; Suans v. £mt£7i, 21 Ky. (5 T. B. Mon.) 363, 17 Am. Dec. 74; Akers v. Kirk, 91 Ga. 590, 18 S. E. 366; Thorn v. Hess, 51 111. App. 274; Binford v. Young, 115 Ind. 174, 16 N. E. 142 ; Bank v. Seymour, 64 Mich. 59, 31 N. W. 140. As to the admissibility of facts discovered in consequence of an inadmissible confession, see note to Whitely v. Miss. (Miss.), 53 L. R. A. 402. Duress. — Sustaining text. Tilley v. Damon, 11 Cush. 247. The admission need not be voluntary in the sense in which a con- fession must be voluntary. Newhall v. Jenkins, 2 Gray (Mass.), 562. The fact that one was compelled to testify in an earlier suit does not render his admissions thus made incompetent because of duress. Tooker v. Gonner, 2 Hilt. 71. Facts. — But admissions of facts, even though in the course of conversations about a compromise, are admissible. Thorn v. Hess, 51 111. App. 274. New Jersey. Compromises. — Offers of compromise not admissible against the party. Miller v. Halsey, 14 N. J. L. 48; Wrege v. Westcott, 30 N. J. L. 212; Railway Co. v. Currie, 54 N. J. Eq. 84; Gardner v. Short, 19 N. J. Eq. 341; Croiother v. Lloyd, 31 N. J. L. 395. An offer made by one party to another is competent evidence against the former, when it was not stated that it was made with- Chap. IV.] THE LAW OF EVIDENCE. 137 out prejudice and was not in compromise of a claim. Richardson v. Pottery Co., 63 N. J. L. 248. Maryland. Compromises. — Offers of compromise are not admissible. Reynolds V. Ma/nning, 15 Md. 510, 526; Groff v. Hansel, 33 Md. 161. Unaccepted offer of a compromise not admissible. Furnace Co. v. Hooper, 90 Md. 390. An offer of settlement of a suit pending is not admissible, even though nothing was said as to its being without prejudice. Rey- nolds v. Manning, 15 Md. 510. Statements made to induce the other to make an offer of com- promise are admissible. Seldner v. Smith, 40 Md. 602. Admissions made during an attempt to compromise are compe- tent evidence unless made without prejudice or made as mere con- cessions to induce the compromise. Calvert v. Fricbus, 48 Md. 44. A claim made, but not accepted, is not admissible against the one making it. Pentz v. Fire Ins. Co., 92 Md. 441. But an offer to settle a loss, not made by way of compromise, is admissible to show that the company did not refuse to pay because of failure to furnish proof of loss. Id. Pennsylvania. Compromises. — Offers of compromise are not admissible. Slocum V. Perkins, 3 S. & R. 295; Spence v. Spence, 4 Watts, 165; Arthur v. James, 28 Pa. 236; Tryon v. Miller, 1 Whart. 11. Letters written in a negotiation for a settlement are not admis- sible. Fisher v. Life Assn., 188 Pa. 1. Admissions made in negotiations for a compromise not effected are not admissible. Spence v. Spence, 4 Watts, 165. The admission of an independent fact, though made during nego- tiations for a compromise, is admissible. Sailor v. Hertzog, 2 Pa. 182; Arthur v. James, 28 Pa. 236. Admissions at the time of an offer of compromise, but not a part of it, are admissible. Sailor v. Hertzog, 2 Pa. 182. When a part of a conversation has been offered, the remainder becomes admissible even though it may contain an offer of a com- promise. Bascom v. Stove & Mfg. Co., 152 Pa. 427. 138 A DIGEST OF [Part I. Article 21. confessions defined. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the in- ference, that he committed that crime. Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only. AMERICAN NOTE. General. Authorities. — 6 Am. & Eng. Encyclopaedia of Law ( 2d ed. ) , p. 520 et seq.; Underhill on Evidence, sec. 88 et seq.; U. S. v. Douglas, 2 Blatchf. 207; 17. S. v. White, 5 Cranch C. C. 38; Gaines v. Rolf, 12 How. 472, 539; Hopt v. Utah, 110 U. S. 574, 583, 4 S. C. Rep. 202. Confession denned in State v. Carr, 53 Vt. 37. Confession to be. admitted must be voluntary. State v. Walker, 34 Vt. 296; State v. York, 37 N. H. 175; Com. v. Nott, 135 Mass. 209; Com. v. Myers, 160 Mass. 530; Com. v. Morey, 1 Gray (Mass.), 461; Com. v. Flood, 152 Mass. 529, 25 N. E. 971. Contra, State v. Jenkins, 2 Tyler (Vt.), 377. Remote and obscure allusions by the accused to tbe act in con- templation are admissible on a criminal prosecution, as tending to show an existing disposition or design. State v. Hoyt, 47 Conn. 538, 539. Statements of the accused in the nature of a confession are ad- missible in evidence, upon the ground that a party's conduct in respect to the matter in dispute, whether exhibited by acts, speech, <>r writing, which is clearly inconsistent with his contention, is a fact relevant to the issue. Such statements, however, are not in themselves testimony, but are matters to be proved as independent facts, the probative force of which must depend upon the circum- stances of each particular case. State v. Willis, 71 Conn. 204. Chap. IV.] THE LAW OF EVIDENCE. 139 Distinguished from admissions. — People v. Hickman, 113 Cal. 80, 86; State v. Heidenreich, 29 Ore. 381; Fletcher v. State, 90 Ga. 468; Taylor v. flfafe, 37 Neb. 788. By silence. — Keeping silence under certain circumstances may be an implied confession. Sparf v. V. S., 156 U. S. 57; Com. v. McCabe, 163 Mass. 98: Richards v. State, 82 Wis. 172. Even when under arrest. Murphy v. State, 36 0. St. 628 ; Aclcerson v. People, 124 111. 563. Contra, State v. Howard, 102 Mo. 142; Com. v. McDer- mott, 123 Mass. 440. Proof of corpus delicti. — In order to convict on the extra-judicial confession of the accused, the corpus delicti must be proved by other evidence. Robinson's Elementary Law, sec. 511; Bergen v. People, 17 111. 426, 65 Am. Dec. 672; Campbell v. People, 159 111. 9; Gray v. Com., 101 Pa. St. 380, 47 Am. Rep. 733: Stringfellow v. State, 26 Miss. 157, 163, 59 Am. Dec. 247: People v. Lane, 49 Mich. 340: Guild's Case, 5 Halst. (N. J.) 163, 185, 18 Am. Dec. 404; State v. Knowles, 48 la. 598; Blackburn v. State, 23 O. St. 146; People v. Simonsen, 107 Cal. 345; Ryan v. State, 100 Ala. 94: Clark on Criminal Law, p. 130; 6 Am. & Eng. Ency. of Law, p. 569. But see Bishop's New Crim. Pro., par. 1056. The rule is otherwise as to judicial confessions. Dantz v. State, 87 Ind. 398; State v. Lamb, 28 Mo. 218: Hallinger v. Davis, 146 U. S. 314: Can v. Holstine, 132 Fa. St. 337. Last paragraph of text. — A confession is admissible only against the person who made it. Com. v. Ingraham, 7 Gray (Mass.), 46; State v. Albert, 73 Mo. 347; People v. Stevens, 47 Mich. 411; Acker- son v. People, 124 111. 563: Fife v. Com., 29 Pa. St. 429; /Sparf v. U. S.. 156 U. S. 51, 15 S. C. Rep. 273. Definition. — People v. Mondon, 38 Hun. 197. Must be voluntary. — People v. Wentz, 37 N. Y. 303 ; People v. Phillips. 42 N. Y. 200 ; O'Brien v. People, 48 Barb. 274 ; Cox v. People, 80 N. Y. 500; People v. McGloin, 91 N. Y. 242: People v. Burns, 2 Park. Cr. 34; People v. Thorns. 3 Park. Cr. 256: Hartung v. People, 4 Park. Cr. 319: Ward v. People, 3 Hill. 395: People v. J/c.tf a/ton, 15 N. Y. 384: Foxoler v. People, 18 How. Pr. 493; People v. Mardon, 103 N. Y. 211. 57 Am. Rep. 709: People v. McCallam, 103 N. Y. 587 ; Peop?e v. Druse, 103 N. Y. 655. As to the reason of the rule that only voluntary confessions are admissible. People v. Wentz, 37 N. Y. 303; People v. McMahon, 15 NT. Y. 384. 140 A DIGEST OF [Part I. By silence. — A confession may be implied from silence. Kelley v. People, 55 N. Y. 572, 14 Am. Rep. 342; People v. Lewis, 16 N. Y. Supp. 881. Even though the accused is under arrest. Kelley v. People, 55 N. Y. 565. There must however be an opportunity to speak. Hence, no im- plication is to be drawn from silence at a coroner's inquest. People v. Willett, 92 N. Y. 29. By conduct. — Confessions may be implied from conduct. Conkey v. People, 1 Abb. App. Dec. 418; People v. O'Neil, 49 Hun, 422, 17 N. Y. St. R. 956, 112 N. Y. 355; Greenleaf v. People, 85 N. Y. 75, 39 Am. Rep. 636. Or from the act of a third person done in the pres- ence of the accused. Hochreiter v. People, 2 Abb. App. Dec. 363. Explanatory facts. — Facts explaining or qualifying a confession or which indicate its falsity are admissible. People v. Fox, 121 N. Y. 449. Form of confession. — A confession contained in a letter may In- admissible. People v. Cassidy, 133 X. Y. 612. Independent proof of corpus delicti. — A confession will justify a conviction only if there is independent proof that the crime has been committed. May v. People, 92 111. 343; South v. People, 98 111. 261; Bergen v. People, 17 111. 426, 65 Am. Dec. 672; Campbell v. People, 159 111. 9. Last paragraph of text. — A confession is admissible only against the person who made it. Ackerson v. People, 124 111. 563. New Jersey. Confessions must be voluntary. — See cases in succeeding note. In divorce. — Confessions in divorce cases to be received with cau- tion. Clutch v. Clutch, 1 N. J. Eq. 474; Miller v. Miller, 2 N. J. Eq. 139: Jones v. Jones, 17 N. J. Eq. 351; Derby v. Derby, 21 X. J. Eq. 36. Confessions of the particeps criminis are not admissible to prove adultery. Berckmans v. Berckmans, 16 N. J. Eq. 122. Maryland. Authorities. — Voluntary declarations of the accused as to the crime in question are admissible. Lamb v. State, 66 Z\id. 285; Boss v. Stale, 67 Md. 286. A confession is admissible if there is no reason to doubt its truth. If there was such inducement of hope or fear as to cast doubt upon €hap. IV.] THE LAW OF EVIDENCE. 141 the truth of the confession, it is not admissible. State v. F'reeman, 12 Md. 100. The confession of a forger is not admissible in a civil action against a bank to recover funds paid out by it on the alleged forged checks. Hardy v. Bank, 51 Md. 562. Conduct from which complicity in a crime may be inferred is admissible. Bloomer v. State, 48 Md. 521. Pennsylvania. Authorities. — A confession not admitting guilt but merely show- ing guilty knowledge of the crime is not admissible. Com. v. Clark, 130 Pa. 641. A confession through the soil pipes of a prison admitted. Brown v. Com., 76 Pa. 319. Confession is evidence of the first marriage in trial for bigamy. Com. v. Murtaugh, 1 Ash. 272; Com. v. Wyman, 3 Brewst. 338. A confession of one of several jointly tried is admissible, though it may tend to prejudice the others. Fife v. Coin., 2!) Pa. 429. Silence. — A confession may be implied from silence when one is charged with a crime under circumstances justifying the expectation of a reply. EUingcr v. Com., 9S Pa. 33.8. Proof of corpus delicti. — In order to convict on the extrajudicial confession of the accused, the corpus delicti must be proved by other evidence. Gray v. Com.. 101 Pa. 380, 47 Am. Rep. 733; Com. v. Hanlon, 8 Phila. 401. The rule is otherwise as to judicial confessions. Com. v. Hoist ine, 132 Pa. 337. Last paragraph of text. — A confession is admissible only against the person who made it. Fife v. Com., 29 Pa. 429. Article 22.* confession caused by inducement, threat, or promise, when irrelevant in criminal proceeding. No confession is deemed to be voluntary if it appears to the judge to have been caused by any inducement, threat, or promise, proceeding from a person in authority, and * See Note XV. 142 A DIGEST OF [Pabt I. having reference to the charge against the accused person, whether addressed to him directly or brought to his know- ledge indirectly; and if (in the opinion of the judge) 26 such inducement, threat, or promise, gave the accused person reasonable grounds for supposing that by making a confession he would gain some advantage or avoid some evil in reference to the proceedings against him. A confession is not involuntary, only because it appears to have been caused by the exhortations of a person in authority to make it as a matter of religious duty, or by an inducement collateral to the proceeding, or by inducements held out by a person not in authority. The prosecutor, officers of justice having the prisoner in custody, magistrates, and other persons in similar positions, 26 It is not easy to reconcile the cases on this subject. In It. v. Baldry, 1852, 2 Den. 430, the constable told the prisoner that he need not say anything to criminate himself, but that what he did say would be taken down and used as evidence against him. It was held that this was not an inducement, though there were earlier cases which treated it as such. In R. v. Jarvis, 1867, 1 C. C. R. 96, the following was held not to be an inducement: " I think it is right I should tell you that besidea being in the presence of my brother and myself" (prisoner's master), "you are in the presence of two officers of the public, and I should advise you that to any question that may be put to you, you will answer truthfully, so that if you have committed a fault you may not add to it by stating what is untrue. Take care. We know more than you think we know. — So you had better be good boys and tell the truth." On the other hand, in R. v. Reeve, 1872, 1 C. C. R. .301. Hi,, words, " You had better, as good boys, tell the truth:" in R. v. Fennel!, 1881, 7 Q. B. D. 147, " The inspector tells me you are making housebreaking implements; if that is so, you had better tell the truth, it may be better for you," were held to exclude the confes- sion which followed. There are later cases (unreported) which follow rhp^. Chap. IV.] THE LAW OF EVIDENCE. 143 are persons in authority. The master of the prisoner is not as such a person in authority if the crime of which the person making the confession is accused was not committed against him. A confession is deemed to be voluntary if (in the opinion of the judge) it is shown to have been made after the com- plete removal of the impression produced by any induce- ment, threat, or promise which would otherwise render it involuntary. Before a confession can be treated as relevant in a crim- inal trial it must be proved affirmatively that it was free and voluntary. 27 Facts discovered in consequence of confessions improp- erly obtained, and so much of such confessions as distinctly relate to such facts, may be proved. Illustrations. (a) The question is, whether A murdered B. A handbill issued by the Secretary of State, promising a reward and pardon to any accomplice who would confess, is brought to the know- ledge of A, who, under the influence of the hope of pardon, makes a confession. This confession is not voluntary.28 ( b ) A being charged with the murder of B, the chaplain of the gaol reads the Commination Service to A, and exhorts him upon religious grounds to confess his sins. A, in consequence, makes a confession. This confession is voluntary .29 2T R. v. Thompson, [1893], 2 Q. B. 12. The early authorities on the admission of confessions are summed up in this case by Cave, J., who describes a " free and voluntary statement," as one which was not " preceded by any inducement to make a statement held out by a per- son in authority." 28 R. v. Boswell, 1842, Car. & Marsh. 584. 29 R. v. Gilham, 1828, 1 Moo. C. C. 186. In this case the exhorta- tion was that the accused man should confess " to God," but it seems 144 A DIGEST OF [Part I. (c) The gaoler promises to allow A, who is accused of a crime, to see his wife, if he will tell where the property is. A does so. This is a voluntary confession.30 (d) A is accused of child murder. Her mistress holds out an in- ducement to her to confess, and she makes a confession. This i3 a voluntary confession, because her mistress is not a person in author- ity^ (e) A is accused of the murder of B. C, a magistrate, tries to in- duce A to confess by promising to try to get him a pardon if he does so. The Secretary of State informs C that no pardon can be granted, and this is communicated to A. After that A makes a statement. This is a voluntary confession.32 if) A, accused of burglary, makes a confession to a policeman under an inducement which prevents it from being voluntary. Part of it is that A had thrown a lantern into a certain pond. The fact that he said so, and that the lantern was found in the pond in consequence, may be proved.33 AMERICAN NOTE. General. Authorities. — 6 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 525 et seq.; Underhill on Evidence, sec. 88 et seq. Burden of proof. — In some States the burden of showing that a confession is not voluntary is on the defendant. It is prima facie admissible. Com. v. Sego, 125 Mass. 213; Rufer v. State, 25 0. from parts of the case that he was urged also to confess to man " to repair any injury done to the laws of his country." According to the practice at that time, no reasons are given for the judgment. The principle seems to be that a man is not likely to tell a falsehood in such cases, from religious motives. The case is sometimes cited as an authority for the proposition that a clergyman may be compelled to reveal confessions made to him professionally. It has nothing to do with tli6 subject. 30 R. v. Lloyd, 1834, 6 C. & P. 393. 31 R. v. Moore, 1852, 2 Den. C. C. 522. 32 7?. v. Cleices, 1830, 4 C. & P. 221. 33 R. v. Gould, 1840, 9 C. & P. 364. This is not consistent, so far as the proof of the words goes, with R. v. Wartmckshall, 1783, 1 Leach, 263. Chap. IV.] THE LAW OF EVIDENCE. 145 St. 464; State v. Meyers, 99 Mo. 107; State v. Davis, 34 La. Ann. 351. In others the public prosecutor must show it to be voluntary. Bradford v. State, 104 Ala. 68; Wyre v. State, 95 Ga. 467; People v. Sato, 49 Cal. 67 ; Nicholson v. State, 38 Md. 140. If the evidence is conflicting he may admit it with instructions to disregard it if they find it was not voluntary. Com. v. Preece, 140 Mass. 276; Com. v. Burrough, 162 Mass. 512; Com. v. Howe, 9 Gray (Mass.), 110; Com. v. Smith, 119 Mass. 305; Com. v. Piper, 120 Mass. 185; Com. v. Cuffee, 108 Mass. 285; Com. v. Nott, 135 Mass. 269; Wilson v. U. S., 162 U. S. 613; Burdge v. State, 53 O St. 512: Ellis v. State, 65 Miss. 44. The inducement. — A confession is admissible if it appears that the inducement had no effect. Com. v. Crocker, 108 Mass. 464. See, also, Com. v. Knapp, 9 Pick. (Mass.) 503. A plea of guilty before a committing magistrate is admissible as a confession. Com. v. Brown, 150 Mass. 330. A statement by an officer that " the more lies one tells in such <*ases, the deeper one gets into the mud " does not render a confes- sion inadmissible. Com. v. Mitchell, 117 Mass. 431. The mere threat of conviction does not render a confession in- admissible. Com. v. Whittemore, 11 Gray (Mass.), 201. The fact of custody does not prevent a confession being voluntary Com. v. Cuffee, 108 Mass. 285. The fact that the prisoner is in irons does not prevent a confes- sion being voluntary. State v. Gorham, 67 Vt. 365. The mere fact that a confession is made through hope of favor does not affect its admissibility so long as the hope was not induced. Com. v. Sego, 125 Mass. 210, 213. Where one agrees to turn State's evidence, under a promise of immunity from prosecution, but refuses subsequently to testify, his confession is admissible. Com. v. Knapp, 10 Pick. (Mass.) 477; U. S. v. Hinz, 35 Fed. Rep. 272; State v. Moran, 15 Ore. 262. The inducement must be calculated to induce hope or fear. Com. v. Sego, 125 Mass. 210; Com. v. Morey, 1 Gray (Mass.), 461. When voluntary. — Sustaining the first paragraph of the text : Com. v. Chabbock, 1 Mass. 144; Com. v. Knapp, 9 Pick. (Mass.) 496, 20 Am. Dec. 491 ; State v. Potter, 18 Conn. 178 ; State v. Thompson, Kirby (Conn.), 345. Confessions not voluntary are excluded, " not because any wrong 10 146 A DIGEST OF [Part I. is done to the prisoner in using them, but because he may be in- duced by the pressure of hope or fear to admit facts unfavorable to him without regard to their truth in order to obtain the prom- ised relief or avoid the threatened danger." Com. v. Morey, 1 Gray (Mass.), 462. If there were any indication that the prisoner was not perfectly cool and self-possessed, so as to render his statements unreliable, that would seem to be a matter affecting the weight rather than the admissibility of the evidence. State v. Coffee, 56 Conn. 415. Confessions extorted by mob violence, or by like means, are invol- untary and inadmissible. Miller v. People, 39 111. 457 ; Young v. State, 68 Ala. 569; Williams v. State, 72 Miss. 117; State v. Resells, 34 La. Ann. 381, 44 Am. Rep. 436. Religious exhortation. — Com. v. Tuckerman, 10 Gray (Mass.), 173; Com. v. Drake, 15 Mass. 161. Mere advice. — Mere advice of a public official that it is better to confess, coupled with a statement that no promise is made, do not render the confession inadmissible. Com. v. Nott, 135 Mass. 269. The character of the person holding out the inducement. — Com. v. Howe, 2 Allen (Mass.), 153. The master is a person in authority if he is the prosecutor. Com. v. Sego, 125 Mass. 210. A confession to a public official, if voluntary, is admissible. Com. v. Sheehan, 163 Mass. 170; Com. v. Holt, 121 Mass. 61; Com. v. Crocker, 108 Mass. 464. Person not in authority. — Com. v. Tuckerman, 10 Gray (Mass.), 173, 190. A confession to fellow-members of the church is voluntary. Com. v. Drake, 15 Mass. 161. Question for the judge. — The admissibility of a confession pre- sents a question for the judge. Com. v. Culver, 126 Mass. 464; Palmer v. State, 136 Ind. 393; State v. Kinder, 96 Mo. 548; State v. Holden, 42 Minn. 350; Biscoe v. State, 67 Md. 6; Lefevre v. State, 50 O. St. 584. The inquiry as to admissibility is addressed to the discretion of the court, and is whether, considering the age, situation, and char- acter of the prisoner, and the circumstances, it was voluntary or not. State v. Potter, 18 Conn. 178. The discretion of the trial judge in receiving a confession in- volves tv. question of duty, and is, therefore, reviewable; and a clear Chap. IV.] THE LAW OF EVIDENCE. 147 case of abuse may furnish ground for a new trial, State v. Willis, 71 Conn. 294. Collateral inducement. — State v. Wenttoorth, 37 X. H. 218: Stone v. State, 105 Ala. 60, 69; State v. Hopkirk, 84 Mo. 278. After removal of impression. — State v. Carr, 37 Vt. 191; State v. Potter, 18 Conn. 166. Supporting the text. Com. v. Howe, 132 Mass. 250; Com. v. CwZten, 111 Mass. 435; State v. Brown, 73 Mo. 631; Rizzolo v. Com., 126 Pa. St. 54; U. S. v. /Twte, 4 Cranch C. C. 100. The circumstances under which statements are made are a matter for the judge. The fact that prior to the confession to a sheriff, promises and inducements had been held out by another officer. does not, as matter of lrw, render the confession inadmissible. It may appear that the confession was uninfluenced, and voluntarily made. State v. Willis, 71 Conn. 294. Facts discovered through confession. — Com. v. Knapp, 9 Pick. (Mass.) 497, 20 Am. Dec. 491; People v. Hoy Yen, 34 Cal. 176; Pressley v. State, 111 Ala. 34; State v. Winston, 116 N. C. 990: State v. Mortimer, 20 Kan. 93; II. S. v. Hunter, 1 Cranch C. C. 317 ; Gates v. People, 14 111. 433; Laros v. Com., 84 Pa. St. 200; State v. Garvey, 28 La. Ann. 925. A statement by one accused of murder, as to what disposition he had made of the watch of the decedent, in connection with evidence identifying the watch, and that it was found at the place indicated, is admissible, no matter what promises had been previously made. State v. Willis, 71 Conn. 294. In custody. — A confession is not to be rejected simply on the ground that it was made while in custody. People v. Went?. 37 X. Y. 303; Murphy v. People. 63 N. Y. 590; Cox v. People, 80 X. Y. 500; People v. McCallam, 103 X. Y. 587; People v. Chapleau. 121 N. Y. 266; People v. Cassidy, 133 X. Y. 612; People v. Druse. 103 N. Y. 655 ; People v. Rogers, 18 X. Y. 9, 72 Am. Dec. 484 ; People v. Thaus, 3 Park. Cr. 256; Hartung v. People, 4 Park. Cr. 319; People v. Montgomery, 13 Abb. Pr. (X. S.) 207; Ward v. People, 3 Hill, 395. Even though the custody is illegal. Balbo v. People, 80 X. Y. 499, affirming 19 Hun, 424. Inducement withdrawn. — A confession made after the promise which would make it incompetent has been withdrawn is admis- sible. Ward v. People, 3 Hill, 395, 6 Hill, 144. 148 A DIGEST OF [Part I. Confession through hope. — Under section 395 of the Code of Crim- inal Procedure, a confession is not inadmissible simply because it was induced by hope. People v. Mondan, 103 N. Y. 219, 57 Am. Rep. 709. After removal of impression. — People v. MacEinder, 80 Hun, 40, 29 N. Y. Supp. 842. Credit for jury. — The credit to be given to a confession is for the jury. Barnes v. Allen, 30 Barb. 663; Murphy v. People, 63 N. Y. 590. They may give different weight to different parts of it. People v. Ruloff, 3 Park. Cr. 401. New Jersey. What is a voluntary confession. — Roesel v. State, 62 N. J. L. 216; State v. Young, 67 N. J. L. 223. Confession must be voluntary.— Before admitting a confession, the court should require the fullest explanation of the circumstances under which it was made, and the defendant has the right to intro- duce testimony on the point prior to its admission. State v. Hill, 65 N. J. L. 627. A confession improperly induced not admissible, nor is an exami- nation of the accused made a few hours after the confession. State v. Guild, 5 Hal. 163. A confession admissible only when voluntary; the question being as to the state of mind of the prisoner at the time he confessed. This question is for the trial court. Bullock v. State, 65 N. J. L. 557; State v. Roesel, 62 N. J. L. 216; State v. Abbalto, 64 N. J. L. 658. Confession of an infant. — Confession of an infant under twelve to be excluded — circumstances of inducement of hope or fear. State v. Aaron, 1 South. 231, 240. Burden of proof. — The burden of proving that a confession is voluntary is on the State. State v. Young, 67 N. J. L. 223; Roesel v. State, 62 N. J. L. 216. After removal of influence. — A confession is admissible though improper inducements have been previously used if it can be shown that they had no influence on this confession. State v. Guild, 5 Hal. 163. Question for the judge. — Whether a confession was or was not voluntary is a question of mixed law and fact for the trial judge. Sinic v. Young, 67 N. J. L. 223. Chap. IV.] THE LAW OF EVIDENCE. 149 Maryland. Authorities. — -Rogers v. State, S9 Md. 424; State v. Freeman, 12 Md. 100; Green v. tftefe, 96 Md. 384; Biscoe v. State, 67 Md. (J; L'oss v. State, 67 Md. 286. Burden of proof. — Burden of proving a confession to be voluntary is on the prosecutor. Nicholson v. State, 38 Md. 140. Before admitting a confession, the court should ascertain whether any improper inducements were used and whether they did induce the confession. Biscoe v. State, 67 Md. 6; Nicholson v. State, 38 Md. 140. Confessions to officers. — A confession is not involuntary merely because made to a peace officer having custody of the one confessing. Young v. State, 90 Md. 579. A confession made to a marshal of police may be admissible. Ross v. Stale, 07 Md. 286. Question for the judge. — The admissibility of a confession pre- sents a question for the judge. Biscoe v. State, 67 Md. 6. Pennsylvania. Voluntary confessions. — Com. v. Harman, 4 Pa. 269; Fife v. Com., 29 Pa. 429. The inducement. — Confession induced by threats is not admissible. Com. v. H anion, 8 Phila. 423. A confession held admissible obtained after an officer said the following: " If you have anything to tell me, tell the truth; if not, tell me nothing. You have a right to keep your mouth shut, but I tell you now, anything you say to me I shall use against you." Rizzolo v. Com., 126 Pa. 54. The accused may show as a part of his defense that a confession, made prior to one introduced by the State, was procured by improper means. Com. v. Van Horn, 188 Pa. 143. Confessions to officers. — A confession is not inadmissible merely because it was made to the officer in charge of the prisoner. Com. v. Moslcr, 4 Pa. 264; Com. v. McGowan, 2 Pars. 341. A confession is not inadmissible merely because it was made after arrest. Com. v. Moslcr, 4 Pa. 264; Com. v. Hanlon, 8 Phila. 423. After removal of impression. — Supporting the text. Riz~olo v. Com., 126 Pa. 54. A confession is admissible though obtained by means of improper inducements, if adhered to after the influence of such inducements is gone. Com. v. Dillon, 4 Dfell. 116; Fife v. Com., 29 Pa. 437. 150 A DIGEST OF [Part I. Facts discovered through confession. — Laros v. Com., 84 Pa. 200. Province of the court and of the jury. — Whether a confession was voluntary is at first a question for the court. The witness who is offered to prove the confession may first be cross-examined as to the circumstances under which it was given. Later the accused may give testimony to show that the confession was involuntary, and it then becomes a question for the jury. Com. v. Epps, 193 Pa. 512; Rizzolo v. Com., 126 Pa. 54; Com. v. Tan Horn, 188 Pa. 143; Com. v. Shew, 190 Pa. 23. The court is the judge of whether such inducement was held out as to make a confession inadmissible. Fife v. Com., 29 Pa. 429. Article 23.* confessions made upon oath, etc. Evidence amounting to a confession may be used as such against the person who gives it, although it was given upon oath, and although the proceeding in which it was given had reference to the same subject-matter as the proceeding in which it is to be proved, and although the witness might have refused to answer the questions put to him; but if, after refusing to answer any such question, the witness is improperly compelled to answer it, his answer is not a vol- untary confession. 34 Illustrations. (a) The answers given by a bankrupt in his examination may be used against him in a prosecution for offences against the law of bank- ruptcy.-'^ * See Note XVI. 34 R. v. Oarbett, 1847. 1 Den. 236. See also R. v. Given, 1888, 20 Q. B. D. 829. as explained in A', v. Paul, 1890, 25 Q. B. D. 202. •"• r > B. v. Seott, 1856, 1 D. & B. 47 ; 25 L. J. M. C. 128 ; R. v. Robinson, 1867, 1 C. C. R. 80; R. v. Widdop, 1872, L. R. 2 C. C. 5; R. v. Erdheim, [1896], 2 Q. B. 260. Chap. IV.] THE LAW OF EVIDENCE. 151 ( b ) A is charged with maliciously wounding B. Before the magistrates A appeared as a witness for C, who was charged with the same offence. A's deposition may be used against him on his own trial.36 AMERICAN NOTE. General. Authorities. — 6 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 562; 1 Greenleaf on Evidence (15th ed.), sec. 224-227; State v. Witham, 72 Me. 531; State v. Oilman, 51 Me. 209; State v. Coffee, 56 Conn. 399; Com. v. King, 8 Gray (Mass.), 501; Com. v. Brad- ford, 126 Mass. 42; Com. v. Wesley, 166 Mass. 248, 44 N. E. 228; Com. v. Myers, 160 Mass. 530; Com. v. Brown, 103 Mass. 422; Com. v. Dcnehy, 103 Mass. 424, note; State v. Olahn, 97 Mo. 679; Peo- ple v. Mitchell, 94 Cal. 550; Dickerson v. State, 48 Wis. 288; Alston v. State, 41 Tex. 39; Behler v. State, 112 Ind. 140; Wilson v. State, 110 Ala. 1; Newton v. State, 21 Fla. 53. Compare State v. Young, 119 Mo. 495; Wood v. State, 22 Tex. 431; Williams v. Cow., 29 Pa. St. 102; State v. Clifford, 86 la. 553, 41 Am. St. Hep. 518. Where a person afterwards indicted for murder was summoned as a witness before a coroner and there told that he could not be com- pelled to make any statement, held, that his declarations then made are admissible against him on his trial upon the indictment. State v. Coffee, 56 Conn. 413-416. Improperly compelled to answer. — Last clause of the text. Farkes v. State, 60 Miss. S47; Lyons v. People, 137 111. 602; State v. Clifford, 86 la. 550. Testimony at inquest. — Testimony at a coroner's inquest may be admitted as a confession. Hendrickson v. People, 10 N. Y. 13, 61 Am. Dee. 721 ; Teachout v. People, 41 N. Y. 7. Last clause of the text. — Compulsory testimony given after the accused has claimed his privilege cannot be used against him. Hen- dricksen v. People, 10 N. Y. 13, 61 Am. Dec. 721 ; People v. McMahon, 15 N. Y. 384. It is otherwise where the testimony is voluntarily given. People v. Mondan, 103 N. Y. 211, 57 Am. Rep. 709. R« Tf. v. Chidley & Cummins, 1860. 8 Cox, C. C. 365. 152 A DIGEST OF [Part I. Pennsylvania. Authorities. — Williams v. Com., 29 Pa. 102. Confession not inadmissible merely because made on oath. Com. v. Clark, 130 Pa. 641. Testimony of the accused given on oath at the coroner's inquest before he himself was suspected is admissible against him. Williams v. Com., 29 Pa. 102. Where the committing magistrate obtains a confession on oath by a threat of commitment, it is not admissible. Com. v. Harman, 4 Pa. 269. Where a statute provides that a prisoner shall not be put on oath at a preliminary hearing, a confession made under oath at such hearing is not admissible. Com. v. Harman, 4 Pa. 269. Article 24. confession made under a promise of secrecy. If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him. 37 AMERICAN NOTE. General. Authorities. — 6 Am. & Eng. Encyclopedia of Law (2d ed.), pp. 534, 535, 570; 2 Taylor on Evidence (Chamberlayne's 9th ed.), p. 58812. Promise of secrecy.— State v. Squires, 48 N. H. 367; State v. Thomson, Kirby (Conn.), 345; Com. v. Knapp, 9 Pick. (Mass.) 496; 37 Cases collected and referred to in 1 Ph. Ev. 420, and Taylor. 881. See, too, Joy, sections iii., iv., v. Chap. IV.] THE LAW OF EVIDENCE. 153 State v. Darnell, 1 Houst. (Del.) 321; State v. Mitchell, 1 Phill. L. (is. C.) 447. Confessions are not excluded because confidentially made to private individuals, while endeavoring to persuade them to use their influence to secure the admission of the party confessing as a wit- ness for the State. State v. Thompson, Kirby (Conn.), 345. Obtained by deception. — 6 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 535: Coin. v. Dana, 2 Mete. (Mass.) 329; State v. Graham, 74 N. C. 640: State v. Brooks, 02 Mo. 542; Burton v. State, 107 Ala. 108; Heldt v. State, 20 Neb. 492; Wigginton v. Com., 92 Ky. 282; State v. Staley, 14 Minn. 105; Price v. State, 18 O. St. 418; Hardy v. U. S., 3 App. D. C. 35 ; People v. Barker, 60 Mich. 277 ; Com. v. Hanlon, 3 Brewst. (Pa.) 461, 498. While drunk. — A confession made while under the influence of liquor is admissible, but not if so drunk as not to understand the nature of the confession. 6 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 570; Com. v. Howe, 9 Gray (Mass.), 110; State v. Grear, 28 Minn. 426; People v. Ramirez, 56 Cal. 533; State v. Feltes, 51 la. 495; White v. State, 32 Tex. App. 625; Eskridge v. State, 25 Ala. 30; Woolfolk v. State, 85 Ga. 69, 101; People v. Robinson, 19 Cal. 40. No warning. — People v. Cuffee, 108 Mass. 285; Com. v. Robin- son, 165 Mass. 429, 43 N. E. 121; Wilson v. U. S., 162 U. S. 613. A warning to the accused that he need not confess is not necessary, but if given is relevant to show that the confession was voluntary. State v. Oilman, 51 Me. 206. The warning, when given, tends to show that the confession was voluntary. People v. Simpson, 48 Mich. 474. It is sometimes re- quired by statute. State v. Rogers, 112 N. C. 874; Coffee v. State, 25 Fla. 501. In answer to improper question. — People v. Wentz, 37 N. Y. 303, 306. Pennsylvania. Confessions obtained by deception. — Confession obtained by arti- fice is admissible. Coin. v. Hanlon, 3 Brewst. 461; Com. v. Cres- singer, 193 Pa. 326. A confession procured by the artifice of granting an interview between a man and a woman accused of a crime and then stationing eavesdroppers is admissible. Com. v. Goodwin, 186 Pa. 218. 154 A DIGEST OF [Part J. A confession obtained by detectives, who represented themselves to be a criminal gang and offered to let the defendant join them if he could show that his criminal record was sufficient, is admissible, but open to suspicion. Com. v. Wilson, 186 Pa. 1. A confession to a fellow convict obtained by deception is admissi- ble in the absence of improper inducement. Com. v. H anion, 3 Brewst. 461; 8. C, 8 Phila. 401, 423. Article 25. statements by deceased persons when deemed to be relevant. Statements written or oral of facts in issue or relevant or deemed to be relevant to the issue are deemed to be relevant, if the person who made the statement is dead, in the cases, and on the conditions, specified in Articles 26-31, both inclusive. In each of those articles the word " declara- tion " means such a statement as is herein mentioned, and the word " declarant " means a dead person by whom such a statement was made in his lifetime. AMERICAN NOTE. General. Authorities. — 9 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 6 et seq.; 1 Greenleaf on Evidence (15th ed.), sec. 123; Putnam v. Fisher, 52 Vt. 191. It is no ground for admitting a declaration of a living person that he cannot be produced as a witness. Churchill v. Smith, 16 Vt. 560. Insanity. — Insanity in some States has the same effect as death so far as the question of admissibility of declarations is concerned. Union Bank v. Knapp, 3 Pick. (Mass.) 96, 109, 15 Am. Dec. 181; Holbrooh v. Cay, 6 Cush. (Mass.) 215; Reynolds v. Manning, 15 Md. 510, 523. Chap. IV.] THE LAW OF EVIDENCE. 155 Absence. — And so in some States has permanent absence from the State. Alter v. Berghaus, 8 Watts (Pa.), 77; Elms v. Chevis, 2 McCord (S. C), 329; Reynolds v. Manning, 15 Md. 510, 523. Contra, Moore v. Andrews d Bros., 5 Porter (Ala.) 107. Maryland. Declarations of one now insane are admissible; also of one per- manently absent from the State. Reynolds v. Manning, 15 Md. 510, 523. Pennsylvania. Permanent absence from the State has the same effect as death. Alter v. Berghaus, 8 Watts, 77. Article 26.* dying declaration as to cause of death. A declaration made by the declarant as to the cause of his death, or as to any of the circumstances of the transac- tion which resulted in his death, is deemed to be relevant only in trials for the murder or manslaughter of the declarant ; and only when the declarant is shown, to the satisfaction of the judge, to have been/in actual danger of death, and to have given up all hope of recovery at the time when his declaration was made. Such a declaration is not irrelevant merely because it was intended to be made as a deposition before a magistrate, but is irregular. Illustrations, (a) The question is, whether A has murdered B. B makes a statement to the effect that A murdered him. B at the time of making the statement has no hope of recovery, * See Note XVII. 156 A DIGEST OF [Part I. though his doctor had such hopes, and B lives ten days after making the statement. The statement is deemed to be relevant.38 B, at the time of making the statement (which is written down), says something, which is taken down thus : " I make the above state- ment with the fear of death before me, and with no hope of recovery."' B, on the statement beiag read over, corrects this to " with no hope at present of my recovery." B dies thirteen hours afterwards. The statement is deemed to be irrelevant. 39 ( b) The question is, whether A administered drugs to a woman with intent to procure abortion. The woman makes a statement which would have been admissible had A been on his trial for murder. The statement is deemed to be irrelevant.40 (c) The question is, whether A murdered B. A dying declaration by C that he (C) murdered B is deemed to be irrelevant. 41 (d) The question is, whether A murdered B. B makes a statement before a magistrate on oath, and makes her mark to it, and the magistrate signs it, but not in the presence of A, so that her statement was not a deposition within the statute then in force. B, at the time when the statement was made, was in a dying state, and had no hope of recovery. The statement is deemed to be relevant. 42 AMERICAN NOTE. General. Authorities. — 10 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 360 et seq.; Underhill on Evidence, sec. 100 et seq.; State v. Wag- ner, 61 Me. 178, 195; Com. v. Casey, 11 Cush. (Mass.) 417, 421, 59 Am. Dec. 150; Com. v. Richards. 18 Pick. (Mass.) 437; Maxwell v. Hardy, 8 Pick. (Mass.) 561; Com. v. Cooper, 5 Allen (Mass.), 495 ; Hamlin v. State, 48 Conn. 96. 38 7?. v. Mosley, 1S25, 1 Moo. 97. 39 7?. v. Jenkins, 1869, 1 C. C. R. 187. •»o 7?. v. Hind, 1860, Bell, 253, following 7?. v. Hutchinson, 1824, 2 B. & C. 608 n., quoted in a note to 7?. v. Mead. « Qray's Case, 1841. Ir. Cir. Rep. 76. 42 7?. v. Woodcock. 1789, 1 East, P. C. 356. In this case, Eyre. C. B., is said to have left to the jury the question, whether the deceased was not in fact under the apprehension of death? 1 Leach, 504. It is now settled that the question is for the judge. Chap. IV.] THE LAW OF EVIDENCE. 157 Even though written memoranda of the contents of the declara- tion were made, if they are lost, parol evidence may be admitted. State v. Patterson, 45 Vt. 308. Dying declarations are admissible in a trial for murder resulting from an attempt to commit an abortion. State v. Dickinson, 41 Wis. 299 ; State v. Leeper, 70 la. 748. Scope of proof. — Declarations as to facts attending a murder, made by the victim in expectation of death, are admissible upon the trial for the murder. State v. Smith, 49 Conn. 379 ; State v. Mc- Gotcan, 65 Conn. 381. It is not essential to their admissibility that they should directly accuse the prisoner of being the assailant. State v. Cronin, 64 Conn. 304-306. Antecedent threats cannot be proven by such declarations. State v. Wood, 53 Vt. 560; Jones v. State, 71 Ind. 66; People v. Ah Fong Sing, 64 Cal. 253. How made. — ■ Declarations of this nature are admissible if made in response to questions. Com. v. Casey, 11 Cush. (Mass.) 417. Such a declaration may be made by signs. Com. v. Casey, 11 Cush. (Mass.) 417: State v. Foot You, 24 Ore. 61: Jones v. State, 71 Ind. 66. A dying declaration may be admitted, even though written and sworn to. Com. v. Eaney, 127 Mass. 455. An intended deposition may be used as a memorandum to refresh the recollection of the witness. Com. v. Haney, 127 Mass. 455. In contemplation of death. — The declaration must be made in contemplation of death. Com. v. Dcnsmore, 12 Allen (Mass.), 535; State v. Baldwin, 79 la. 714: Westbrook v. People, 126 111. 81; State v. Nelson, 101 Mo. 464; Kehoe v. Com.. 85 Pa. St. 127: People v. Simpson, 48 Mich. 474; Carver v. U. S., 164 U. S. 694. (Receipt of extreme unction admissible evidence.) See also as similar to the last preceding case. State v. Swift, 57 Conn. 505. 506. All hope of recovery must have been abandoned. Com. v. Roberts, 108 Mass. 296: Com. v. Brewer, 164 Mass. 577: Allison v. Com., 99 Pa. 17; State v. Johnson, 118 Mo. 491 ; Simons v. People, 150 111. 66; Hake v. Com., 89 Va. 171 : People v. Gray, 61 Cal. 164. All the attendant circumstances are admissible to show the actual danger of death and that hope has been abandoned. State v. Swift, 57 Conn. 496. Such declarations may tend to show that the deceased was in actual (lancer of death, and had given up all hope; and if so, are 158 A DIGEST OF [Part I. admissible to lay a foundation for the admission of other declarations which do identify the prisoner as the assailant. State v. Cronin, 64 Conn. 304. In criminal prosecutions only. — Dying declarations are not ad- missible in civil suits. Thayer v. Lombard, 165 Mass. 174, 42 N. E. 563; Daily v. N. Y., etc., R. R. Co., 32 Conn. 356, 87 Am. Dec. 176; Hood v. Pioneer Co., 95 Ala. 461 ; Marshall v. Chicago, etc., R. Co., 48 111. 475. Nearness of death. — It is not necessary that the declarant die at once. They were admitted, although he lived seventeen days after making them. Co?n. v. Cooper, 5 Allen (Mass.), 495; Jones v. State, 71 Ind. 66 (14 days); Loiory v. State, 12 Lea (Tenn.), 142 (17 days) : State v. Craine, 120 N. C. 601 (4 months). Constitutionality of rule. — The constitutional provision that one accused has a right to be confronted with his witnesses does not ex- clude evidence of this nature. Com. v. Casey, 12 Cush. (Mass.) 246: People v. Glen. 10 Cal. 32; Brown v. Com., 73 Pa. St. 321; State v. Nash, 7 la. 347: Walston v. Com., 16 B. Mon. (Ky.) 15: Burrill v. State, 18 Tex. 713: State v. Dickinson, 41 Wis. 299; Rollins v. State, 8 0. St. 131. Only in homicide cases. — They are not admissible in prosecutions for abortion where death is not a necessary element of the crime. People v. Davis, 56 N. Y. 95: They are confined to cases involving the death of the declarant. People v. Davis. 56 N. Y. 103; Hackett V. People, 54 Barb. 372: People v. Wood, 2 Edm. Sel. Cas. 74. Husband and wife. — The declaration of husband or wife is ad- missible on the trial of the other. People v. Green, 1 Den. 614. Sense of impending death, how shown. — Doles v. State, 97 Ind. 555. The proof that a statement was in expectation of death may be circumstantial. Green v. State, 154 Ind. 655. In order to render dying declarations admissible the declarant must be at the point of death, and conscious that he is at the point of death. Jones v. State, 71 Ind. 66; Morgan v. State, 31 Ind. 193; Archibald v. State, 122 Ind. 122; Watson v. State, 63 Ind. 548. Oral evidence. — Unless it appears that a dying declaration has been reduced to writing, oral evidence is admissible. Shenkenlerger v. State, 154 Ind. 630; Lane v. State, 151 Ind. 511. The best evidence of a written and signed dying declaration is the declaration itself. Binns v. State, 46 Ind. 311. Chap. IV.] THE LAW OF EVIDENCE. 159 New Jersey. General rule. — A patient was told she had one chance for life and stated she did not expect to recover but would like, to. Her declara- tions held not admissible. Peak v. State, 50 N. J. L. 179. Whether a dying declaration is admissible or not is for the court ; its credibility is for the jury. Donnelly v. State, 26 N. J. L. 403, 601. Declarant must have had a sense of impending death and no hope of recovery. State v. Peake, 10 N. J. L. J. 177. The conduct of the declarant while making a dying declaration is admissible. His expectation of approaching death may be shown by his statements, by the fact that he made his will, and by other attendant circumstances. Donnelly v. State, 26 N. J. L. 463, 601. Only to prove homicide.— Dying declarations inadmissible for other purposes (Mackay v. Mackay, Pen. 419e) as to show that the accused was insane (State v. Spencer, 1 Zab. 196). Illustration (b).— In prosecution for causing an abortion, where the death of the woman is an element of the crime, her dying decla- rations are admissible. State v. Meyer, 65 N. J. L. 237, reversing 64 N. J. L. 382. In civil cases. — Dying declarations not admissible as such in civil actions. Jenks v. Breen (Ch.), 5 Atl. 647. Atheists. — Dying declaration by one not believing in God or in future reward and punishment is not admissible. Donnelly v. State, 26 N. J. L. 465, 602. Maryland. A declaration of one who believed she was about to die is admis- sible even though her physician held out hopes of her recovery. Worthington v. State, 92 Md. 222. Pennsylvania. General authorities. — Pennsylvania v. Stoops, Add. 381 ; Com. v. Williams, 2 Ash. 69; Kilpatrick v. Com., 31 Pa. 198; Com. v. Reed, 2 Pitts. 470, 5 Phila. 528; Com. v. Mika, 171 Pa. 273; Com. v. Sil- cox, 161 Pa. 484. Declaration admissible though made seven days before death. Com. v. Brit ton, 2 Leg. Gaz. 26. Persons accused of the crime may be presented before the dying man, masked as were the parties when the deed was done, and his 1G0 A. DIGEST OF [Part I. identification becomes a part of his dying declaration. Com. v. Roddy, 184 Pa. 274. A dying- declaration as to the nature of an injury and the person causing it is admissible, no matter how much or how convincing the other evidence on the subject may be. Com. v. Roddy, 184 Pa. 274. Oral and written dying declarations received. Com. v. Birriolo, 197 Pa. 371. Parol evidence of a dying declaration is admissible, even though it was reduced to writing but not read over or signed by the declar- ant. Alison v. Com., 99 Pa. 17. Preliminary proof. — The preliminary evidence showing that a dec- laration was made under a sense that death was impending may be given in the presence of the jury. Sullivan v. Com., 93 Pa. 284. Only in trials for homicide of declarant. — Admissible only in trials for the homicide of the declarant. Brown v. Com., 73 Pa. 321 (mur- der of declarant's husband) ; Com. v. Reed, 5 Phila. 52S (bastardy) ; Kilpatriek v. Com., 31 Pa. 198. Declaration of the woman was admitted on trial of an indictment for producing a miscarriage causing death. Com. v. Bruce, 16 Phila. 510. Dying declaration not admissible in a civil suit. Friedman v. Railroad Co., 7 Phila. 203. Dying declarations of a codefendant not admissible. Respublica v. Langcake, 1 Yeates, 415. Declaration of the wife not admissible in trial for murder of the husband, though she was murdered at the same time by the de- fendant. Brown v. Com., 73 Pa. 321. Consciousness of impending death. — Small v. Com., 91 Pa. 304; Kilpatriek v. Com., 31 Pa. 198. The consciousness of impending death may be inferred from the circumstances. Com. v. Murray, 2 Ashm. 41 ; Sullivan v. Com., 93 Pa. 284. Or it may be shown by the words of the deceased. Kehoe v. Com., 85 I'm. 127; Com. v. Mika, 171 Pa. 273. All hope of recovery must have been given up by the declarant at the time the declaration is made. Alison v. Com., 99 Pa. 17; Small v. Com., 91 Pa. 304. Death must have been impending and must have actually ensued. Kilpatriek v. Com., 31 Pa. 198. Court and jury. — Admissibility of a dying declaration is for the court : credibility is for the jury. Kehoe v. Com., 85 Pa. 127; Com. v. Sullivan, 93 Pa. 284. Chap. IV.] THE LAW OF EVIDENCE. 161 Constitutionality of rule. — The constitutional provision that one accused has a right to be confronted with his witnesses does not ex- clude evidence of this nature. Brown v. Com., 73 Pa. 321. Article 27.* declarations made in the course of business or professional duty. A declaration is deemed to be relevant when it was made by the declarant in the ordinary course of business, and in the discharge of professional duty, at or near the time when the matter stated occurred, 43 and of his own knowledge. Such declarations are deemed to be irrelevant except so far as they relate to the matter which the declarant stated in the ordinary course of his business or duty, or if they do not appear to be made by a person duly authorised to make them. Illustrations. (a) The question is, whether A delivered certain beer to B. The fact that a deceased drayman of A's on the evening of the de- livery, made an entry to that effect in a book kept for the purpose, in the ordinary course of business, is deemed to be relevant. 44 ( b ) The question is, what were the contents of a letter not produced after notice. A copy entered immediately after the letter was written, in a book kept for that purpose, by a deceased clerk, is deemed to be relevant. 45 (c) The question is, whether A was arrested at Paddington, or in South Molton Street. A certificate annexed to the writ by a deceased sheriff's officer, and returned by him to the sheriff, is deemed to be relevant so far as it * See Note XVIII. 43 Doe v. Turford, 1832, 3 B. & Ad. 890. 44 Price v. Torrington, 1703, 2 Smith's L. C. 311. 45 Pritt v. Fairclough, 1812, 3 Camp. 305. 11 162 A DIGEST OF [Part L relates to the fact of the arrest; but irrelevant so far as it relates to the place where the arrest took place.46 (d) The course of business was for A, a workman in a coal-pit, to tell B, the foreman, what coals were sold, and for B (who could not write) to get C to make entries in a book accordingly. The entries (A and B being dead) are deemed to be irrelevant, be- cause B, for whom they were made, did not know them to be true. 4 ? (e) The question is, what is A's age. A statement by the incum- bent in a register of baptisms that he was baptised on a given day is deemed to be relevant. A statement in the same register that he was born on a given day is deemed to be irrelevant, because it was not the incumbent's duty to make it. 48 (f) The question is, whether A was married. Proceedings in a college book, which ought to have been but was not signed by the reg- istrar of the college, were held to be irrelevant. 49 AMERICAN NOTE. General. Authorities. — 2 Taylor on Evidence ( Chamberlayne's 9th ed. ) , sec. 697 et seq.; McKelvey on Evidence, p. 239 et seq.; Wheeler v. Walker, 45 N. H. 355; Lassone v. Boston, etc., R. R. Co., 66 N. II. 345 ; Barber v. Bennett, 58 Vt. 476, 56 Am. Rep. 565 ; Welsh v. Bar- rett, 15 Mass. 380, 383; Riley v. Boehm, 167 Mass. 183; Jones v. How- ard, 3 Allen (Mass.), 223. When relevant. — First paragraph of the text. Abel v. Fitch, 20 Conn. 96. Instances. — Memoranda of a surveyor are admissible under this article. Walker v. Curtis', 116 Mass. 98. And those of a parish priest likewise. Kennedy v. Doyle, 10 Allen (Mass.), 161; Whitcher v. McLaughlin, 115 Mass. 167. So those of a hospital physician. Townsend v. Pepperell, 9!) Mass. 40. 4 r >Cha7nbers v. BernasconL 1S34. 1 C. M. & R. 347; see, too, Smith r. Blakey, 1867, L. R. 2 Q. B. 326. n Brain v. Preece, 1843. 11 M. & W. 773. 4 8 R. v. Clapham, 1829, 4 C. & P. 29. w Fox v. Bearblock, 1881, 17 Ch. Div. 429. Chap. IV.] THE LAW OF EVIDENCE. 163 The register of a notary is admissible to prove official acts with reference to dishonored paper. Porter v. Judson, 1 Gray (Mass.), 175; Nicholls v. Webb, 8 Wheat. (U. S.) 326. Time when made. — Matthews v. Westboro, 134 Mass. 562. The fact that the entries are made two or three days aftsr the occurrences does not, of itself, render them inadmissible. Barker v. Haskell, 9 Cusli. (Mass.) 218. Under certain circumstances, entries made from two to four weeks after the occurrences are admissible. Hall v. Glidden, 39 Me. 445; Chaffee v. U. S., 18 Wall. 516; Reynolds v. Sumner, 126 111. 58; Cul- ver v. Marks, 122 Ind. 554; Sands v. Hammell, 108 Ala. 624; Laird v. Campbell, 100 Pa. 159. Absent party. — In some States such declarations are admissible when the declarant has gone to parts unknown. New Haven, etc., Co. v. Goodwin, 42 Conn. 230. Or is out of the State. Heiskell v. Rollins, 82 Md. 14; McDonald v. Games, 90 Ala. 147; Rigby v. Logan, 45 S. C. 651. Insane party. — Or insane. Bridgewater v. Roxbury, 54 Conn. 213; Union Bank v. Knapp, '■'> Pick. (Mass.) 96. But not if he is competent and within the State. Bartholomew v. Farwell, 41 Conn. 107; House v. Bleak, 14] 111. 290. Books of account. — By the early common law, books of account, as such, were inadmissible. In this country they are admissible, both authenticated. 9 Am. & Eng. Encyclopaedia of Law (2d ed.), p. D03; against and in favor of the person keeping them, when properly 2 Taylor on Evidence (American edition of 1897), p. 4631 es, 51 111. 247; Firs* Yai. .BanA; of Wood- stock v. Mansfield, 48 111. 494; Waggeman v. Peters, 22 111. 42: Adams v. Ft*»fc, 53 111. 219; Kirby v. TFaM, 19 111. 393; Dishon v. Schorr, 19 111. 59; Humphreys v. Spear, 15 111. 275; Friend v. Cote, 5 Gilm. 339; Dodson v. Sears, 25 111. 513; #o?/er v. Sjteef, 3 Scam. 120. As to authenticating books of account. *ee Brooks v. Funk, 85 111. App. 631. In order that books of account be admissible the preliminary proof under the staute must be made. Richardson v. Allman, 40 111. App. 90, 93; Sexton v. Brown, 36 111. App. 281, 283. As to preliminary proof in case of books of account, see Rigdoi< v. Conley, 141 111. 565; House v. Beak, 141 111. 290. As to foundation for the admission of books of account, see F. H. Hill Co. v. Sommer, 55 111. App. 344. It is error to admit the plaintiffs books without laying sufficient ground for their admission. Baird v. Hooker, 8 Brad. 306. Account-books are not authenticated by the mere admission of a partner that they are correct. Gormley v. Hartray. 92 111. App. 115. Evidence that account-books are the only ones kept authenticates them as books of original entry. Patrick v. Jack, 82 111. SI. A witness must be called to authenticate a party's books of ac- 1G6 A DIGEST OF [Part I. count, Stcllaner v. White, 98 111. 72; Redlich v. Bauerlee, 98 111. 134; Clapp v. Emery, 98 111. 523. The one offering books of account should testify that they were made by himself and are true and just. Pres. Church v. Emerson, 66 111. 269. Compare Walcott v. Heath, 78 111. 433. When entries are customarily made on information received from others, if these are authenticated as correct by the informants, such entries are admissible. Chisholm v. Beaman Co., 160 111. 101. Weather records.— Hart v. Walker, 100 Mich. 406. Record of receipts. — People v. Flash, 100 Mich. 512. Illustration (e).-Durfee v. Abbott, 61 Mich. 471. New Jersey. Church records. — A church record of baptisms is admissible. Supreme Assembly v. McDonald, 59 N. J. L. 248. Physician's record. — Daily entries by a physician in the ward- books of an asylum are admissible. State v. Hinkley, 9 N. J. L. J. US. Books of a corporation. — The books of a corporation are competent evidence of the proceedings of the corporation. X. River Meadow Co. v. Shrewsbury Church, 2 Zab. 425; Van Hook v. Somerville Co., 5 X. J. Eq. 137, 633; Black v. Lamb, 12 N. J. Eq. 109. Books of account. — Books of account are admissible to prove amount of service rendered. Oliver v. Phelps, Spen. 180, 1 Zab. 597 : Lyons v. Davis, 30 N. J. L. 301. Books of account not admissible to prove damages from breach of covenant or from wrongful taking of personal property. Wait v. Krevcson, 59 N. J. L. 71. Day-book admissible. Oram v. Bishop. 7 Hal. 153. Books of original entry. — The book of original entries should be produced. Bonnell v. Mawha, 37 X. J. L. 198 (day-book and ledger). Slips written by a bookkeeper in course cf business, but not the original memoranda of the transactions in question, are not admis- sible. New Jersei/ Zinc Co. v. Lehigh Zinc Co., 59 X. J. L. 189. An account-book not a book of original entry is not admissible. Rumscy v. Telephone Co., 49 N. J. L. 322. Day-book and ledger should be offered together, when it appears affirmatively that some items have been carried over into the latter. Bonnell v. Mairha, 37 X. J. L. 198. €iiap. IV.] THE LAW OF EVIDENCE. 167 Cash items. — Plaintiff's book is evidence of money lent. Craven v. kiUaird, 2 Hal. 345; Brannin v. Voorhees, 2 Green, 590. But not where the book contains but the single item of cash loaned. Carman v. Dunham, (i Hal. 189; 'Wilson V. Wilson, 1 Hal. 95. And see, as holding that books of account are not admissible to prove payment of money or a loan of money, Inslee v. Prall, 3 Zab. 457; 8. C, 25 N. J. L. 665. Books of account not admissible in favor of the merchant to prove payments credited therein. Oberg v. Breen, 50 N. J. L. 145. Time entries must be made. — Entries may be admissible even though not made on the same day as the transaction, if they are made in the usual course of business. Bay v. Cook, 2 Zab. 343. Entries made in a day-book twenty days after the business was closed, from slips on which memoranda had been put down, held ad- missible. The slips themselves also admissible in connection with the day-book. Dianienl v. Colloty, 66 N. J. L. 295. Miscellaneous. — Stubs in a check-book are not admissible. Bunt- in;/ ads. Allen, 3 Harr. 299. An account rendered is admissible, though not kept by book. Norris v. Douglass, 2 South. 817. Erasures in an account affect only its credibility, not its admissi- bility. James v. Harvey, Coxe, 228; C'oofc v. Brister, 4l Harr. 73. Maryland. Authority. — Such declarations must have been made as a part of the ordinary routine of the particular transaction. Railroad Co. v. Manro, 32 Md. 280. Absent party. — Such declarations are admissible when the declar- ant is out of the State. Heiskell v. Rollins, 82 Md. 14. Books of account. — Original entries made by a clerk in the regular •course of his duty, when he had no interest to misstate the fact, are admissible on proof of his handwriting if the clerk himself be dead, insane, or beyond the jurisdiction. Reynolds v. Manning, 15 Md. 510. Entries in the regular course of business by a clerk having no interest to make them incorrectly are admissible on proof of his handwriting if he himself is beyond the jurisdiction. Heiskell v. Rollins. 82 Md. 14. The entries need not be in the handwriting of the witness himself, if made at his dictation and in his presence. Bullock v. Hunter, 44 5Id. 416. 1G8 A DIGEST OF [Pabt 1. A pass-book in a bank is competent evidence to show that a note had been discounted. Black v. Bank, 96 Md. 399. If a party relies upon certain entries in his favor, the other entries in the book become admissible also. Allender v. Vestry of Trinity, 3 Gill, 106; Leo v. Tinges, 7 Md. 216. Entries by interested party. — ■ The rule admitting books of original entry applies only when such entries were made by a disinterested party. Romer v. Jaecksch, 39 Md. 585. Entries by one partner now dead are not admissible against a firm debtor. Romer v. Jaecksch, 39 Md. 585. Entries in a book of original entry made by the defendant in his own handwriting ai - e not admissible against the plaintiff, but may be used to refresh recollection. Stallings v. Gottschalk, 77 Md. 429. In corroboration. — Where a witness saw money paid by one now deceased and further saw the deceased make entries in relation thereto in his books, such entries are admissible in corroboration of the witness, though they would not be independently admissible. Gill v. Staylor, 93 Md. 453. Entries not original. — Entries made from memoranda kept by another are not admissible. Thomas v. Price, 30 Md. 483. A copy of certain entries is not admissible, even though the origi- nal entries were made by the one copying them. Green v. Caulk, 16 Md. 556. Illustration (e). — Weaver v. Lciman, 52 Md. 708. Illustration (d).— Thomas v. Price, 30 Md. 483. Proof of accounts. — P. G. L. 1888, art. 35, sees. 43-46. Comptroller's accounts made prima facie evidence. P. G. L. 1888, art. 19, sec. 22. Pennsylvania. Books of account. — Entries in account-books are admissible even in favor of the party making them to prove work done or goods sold and delivered. Corr v. Sellers, 100 Pa. 169. One cannot prove the existence of a contract by proving an entry in his books charging himself with receipt of the consideration. Building Society v. Holt, 184 Pa. 572. Where there is a written contract to deliver goods at specified periods, their delivery cannot be proved by books of original entry. Hall v. Woolen Co., 187 Pa. IS. Self-serving entries not admissible. Hottle v. Weaver, 206 Pa. 87. The payment or loan of money cannot be proved by entries in books of account. Ducoign v. Schreppel, 1 Yeates, 347. Chap. IV.] THE LAW OF EVIDENCE. 169 Entries containing " lumping charges " are not admissible. Corr v. Sellers, 100 Pa. 109. As to the effect of making parties competent witnesses, see Nichols v. Haynes, 78 Pa. 174. Entry in a receipt-book of a company is admissible against it. Building Assn. v. Sutton, 35 Pa. 463. The books of a mutual insurance company are admissible against one insured in the company. Diehl v. Insurance Co., 58 Pa. 443. Account-books are not admitted as against the representative of one now deceased. Appeal of McNulty, 135 Pa. 210; Bishop v. Good- hart, 135 Pa. 374. Books of original entry. — A ledger is admissible if it is the book of original entry, and not otherwise. Hoover v. Gehr, 62 Pa. 136; Huston's Estate, 167 Pa. 217. Transferred entries held not admissible. Breinig v. Meitzler, 23 Pa. 156; Forsythe v. Norcross, 5 Watts, 432; Kessler v. McCon- achy, 1 Kawle, 435. A day-book into which entries are copied from a blotter is not a book of original entry. Breinig v. Meitzler, 23 Pa. 156. But a book into which entries are made on the same or following day from memoranda of servants is admissible. Ingraham v. Bock- ins, 9 S. & R. 285; Patton v. Ryan, 4 Rawle, 408; Hartley v. Brookes, 6 Whart. 189; Jones v. Long, 3 Watts, 325; Hoover v. Gehr, 62 Pa. 136. Book of original entry written in lead pencil is admissible. Hill v. Scott, 12 Pa. 168. Course of business. — An entry not in the usual course of business is not admissible. Shoemaker v. Kellog, 11 Pa. 310. A book containing no entries except those against the defendant is not admissible as one kept in the regular course of business. Fulton's Estate. 178 Pa. 78. An entry of a special transaction not in the usual course of busi- ness is not admissible. Stuckslager v. Neel, 123 Pa. 53. Time of entry. — Kaughley v. Brewer, 16 S. & R. 133; Wollen- weber v. Ketterlinus, 17 Pa. 389; Keim v. Rush, 5 W. & S. 377; Parker v. Donaldson, 2 W. & S. 9 ; Rhoads v. Gaul, 4 Rawle, 404. To be admitted, the entries must have been made at the time of the transaction. Fairchild v. Dennison, 4 Watts, 258; Walter v. Bollman, 8 Watts, 544; Hoover v. Gehr, 62 Pa. 136. 170 A DIGEST OF [Part I. Under certain circumstances, entries made from two to four weeks after the occurrences are admissible. Laird v. Campbell, 100 Pa. 159. Entries made regularly at the end of each week held admissible. Yearsley's Appeal, 48 Pa. 531. Charges made in the book before the goods were sold are not ad- missible. Laird v. Campbell, 100 Pa. 159. Illustration (e). — ■ Sitler v. Gehr, 105 Pa. 577. In suits between third parties. — Books of a bank not admissible to prove a deposit in a suit between third parties unless the clerk making the entries be dead or beyond the jurisdiction. Bank v. Officer, 12 S. & R. 49; Ridgway v. Bank, 12 S. & R. 256; Gochcnaucr v. Good, 2 P. & W. 174. Book of original entry is not admissible in a suit between third parties to prove a collateral fact. Bank v. Brown, 5 S. & R. 226; Winter v. Newell, 49 Pa. 507. Authentication of entries. — The maker of the entry should be called to prove it. Sterrett v. Bull, 1 Binn. 234; Imhoff v. Smith, 3 Phila. 381. But if he is dead or absent from the State, his hand- writing may be proved. Hay v. Kramer, 2 W. & S. 137; Alter v. Berghaus, 8 Watts, 77; Odell v. Culbert, 9 W. & S. G6 ; Hoover v. Gehr, 62 Pa. 136. Erasures and alterations must be explained before a book is ad- missible. Churchman v. Smith, 6 Whart. 146; Kline v. Gundrum, 11 Pa. 242. Verified copies of bank books. — Pepper & Lewis' Digest of Laws. "Evidence," sees. 39-41. Article 28.* declarations against interest. A declaration is deemed to be relevant if the declarant had peculiar means of knowing the matter stated, if he had no interest to misrepresent it, and if it was opposed to his pecuniary or proprietary interest. 50 The whole of any such * See Note XIX. 50 These are almost the exact words of Bayley, J., in Gleadow v. Atkin, 1833, 1 Cromp. & M. at p. 423. The interest must not be too remote: Smith v. Blakey, 1867, L. R. 2 Q. B. 326. Chap. IV.] TEE LAW OF EVIDENCE. 171 declaration, and of any other statement referred to in it is deemed to be relevant, although matters may be stated which were not against the pecuniary or proprietary inter- est of the declarant ; but statements, not referred to in, or necessary to explain such declarations, are not deemed to bo relevant merely because they were made at the same time or recorded in the same place. 51 A declaration may be against the pecuniary interest of the person who makes it, if part of it charges him with a liability, though other parts of the book or document in which it occurs may discharge him from such liability in whole or in part, and [it seems] though there may be no proof other than the statement itself either of such liability or of its discharge in whole or part. 52 A statement made by a declarant holding a limited interest in an;y property and opposed to such interest is deemed to be relevant only as against those who claim under him, and not as against the reversioner. 53 An endorsement or memorandum of a payment made upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such pay- ment was made, is not sufficient proof of such payment to take the case out of the operation of the Statutes of 51 Illustrations (a) (b) and (c). 52 Illustrations (d) and (e). 53 Illustration (g) ; see Lord Campbell's judgment in case there quoted, at p. 177. 54 9 Geo. IV. c. 14, s. 3. 172 A DIGEST OF [Part I. Limitation ; 54 but any such declaration made in any other form by or by the direction of the person to whom the payment was made is, when such person is dead, sufficient proof for the purpose aforesaid. 55 Any indorsement or memorandum to the effect above mentioned made upon any bond or other specialty by a deceased person, is regarded as a declaration against the proprietary interest of the declarant for the purpose above mentioned, if it is shown to have been made at the time when it purports to have been made ; 5G but it is uncertain whether the date of such indorsement or memorandum may be presumed to be correct without independent evidence. Statements of relevant facts opposed to any other than the pecuniary or proprietary interest of the declarant are not deemed to be relevant as such. 58 Illustrations. (a) The question is, whether a person was born on a particular day. 55 Bradley v. James, 1853, 13 C. B. 822. Xewbould v. Smith, 1885, 29 Ch. Div. 882, seems scarcely consistent with this. It was a de- cision of North, J. On appeal, 1886, 33 Ch. Div. 127, the Court ex- pressed no opinion on the admissibility of the entry rejected by North, J.; and see, too, the appeal to the House of Lords, 1889, 14 App. C'a. 423. where the same was the case. 56 3 & 4 Will. IV. c. 42, which is the Statute of Limitations relat- ing to Specialties, has no provision similar to 9 Geo. IV. c. 14, s. 3. Hence, in this case the ordinary rule is unaltered. 57 See the question discussed in 2 Ph. Ev. 302-305, and Taylor, ss. 692-696: and see Article 85. 58 Illustration {h). Chap. IV.] THE LAW OF EVIDENCE. 173 An entry in the book of a deceased man-midwife in these words is deemed to be relevant: 59 " W. Fowden, Junr.'s wife, Filius circa hor. 3 post merid. natus H. W. Fowden, Junr., App. 22, filius natus, Wife, £1 6s. Id., Pd. 25 Oct., 1768." (6) The question is, whether a certain custom exists in a part of a parish. The following entries in the parish books, signed by deceased church-wardens, are deemed to be relevant — " It is our ancient custom thus to proportion church-lay. The chapelry of Haworth pay one-fifth, &c." Followed by — " Received of Haworth, who this year disputed this our ancient custom, but after we had sued him, paid it accordingly — - £8, and f 1 for costs. "CO (c) The question is, whether a gate on certain land, the property of which is in dispute, was repaired by A. An account by a deceased steward, in which he charges A with the expense of repairing the gate is deemed to be irrelevant, though it would have been deemed to be relevant if it had appeared that A admitted the charge.61 (d) The question is, whether A received rent for certain land. A deceased steward's account, charging himself with the receipt of such rent for A, is deemed to be relevant, although the balance of the whole account is in favour of the steward. 62 (e) The question is, whether certain repairs were done at A's ex- pense. A bill for doing them, receipted by a deceased carpenter, is deemed WHigham v. Ridgway, 2 Smith's L. C. 318. 60 Stead v. Heaton, 1792, 4 T. R. 669. 61 Doe v. Beviss, 1849, 7 C. B. 456. 62 Williams v. Graves, 1838, 8 C. & P. 592. 174 A DIGEST OF [Pabt I. , ( relevant^ ) to be J. I there being no other evidence either that the re- | irrelevant^ ( ° pairs were done or that the money was paid. (/) The question is, whether A (deceased) gained a settlement in the parish of B by renting a tenement. A statement made by A, whilst in possession of a house, that he had paid rent for it, is deemed to be relevant, because it reduces the interest which would otherwise be inferred from the fact of A's pos- session.^ {g) The question is, whether there is a right of common over a certain field. A statement by A, a deceased tenant for a term of the land in question, that he had no such right, is deemed to be relevant as against his successors in the term, but not as against the owner of the field.66 (h) The question is, whether A was lawfully married to B. A statement by a deceased clergyman that he performed the mar- riage under circumstances which would have rendered him liable to a criminal prosecution, is not deemed to be relevant as a statement against interest.67 AMERICAN NOTE. General. Authorities. — 9 Am. & Eng. Encyclopaedia of Law ( 2d ed. ) , p. 7 ; 1 Greenleaf on Evidence (15th ed. ), sec. 147 et seq.; 2 Taylor on Evidence (Chamberlayne's 9th ed.), sec. 068 et seq.; Rand v. Dodge, 17 N. H. 343, 360. A declaration in disparagement of title is admissible under this article. Potter v. Waite, 55 Conn. 236, 10 Atl. 503. The interest must be pecuniary. Com. v. Chabbock, 1 Mass. 143. Declarations of a deceased landowner are admissible to prove a right of way over it. Rowell v. Doggett, 143 Mass. 483. 63 7?. v. Lower Heyford, 1840, note to Higham v. Ridgway, 1808, 2 Smith's L. C. 329. MDoe v. Vowlcs, 1833, 1 Mo. & Ro. 261. In Taylor v. Witham, 1876, 3 Ch. Div. 605, Jessel, M.R., followed R. v. Lower Heyford, and dissented from Doe v. Votcles. 65 R. v. Exeter, 1869, L. R. 4 Q. B. 341. 66 Papendick v. Bridgeicater, 1855, 5 E. & B. 166. 6T Sussex Peerage Case, 1844, 11 C. & F. at p. 108. Chap. IV.] THE LAW OF EVIDENCE. 175 A declaration of a former owner in disparagement of title is ad- missible under this article. Inhabitants of West Cambridge v. In- habitants of Lexington, 2 Pick. (Mass.) 536. The declaration may be oral or written. County of Mahaska v. Ingalls, 16 la. 81; Baker v. Taylor, 54 Minn. 71; Marcy v. Stone, 8 Cush. (Mass.) 4. Death of declarant. — The declaration is admitted only on proof of death. Davis v. Fuller, 12 Vt. 178, 36 Am. Dec. 334; Trammel v. H adman, 78 Ala. 222; Fitch v. Chapman, 10 Conn. 8; Currier v. Gale, 14 Gray (Mass.), 504. Must be against interest. — Hinkley v. Davis, 6 N. H. 210, 25 Am. Dec. 457; Chase v. Smith, 5 Vt. 556; Dvoight v. Brown, 9 Conn. 83, 92; Taylor v. Gould, 57 Pa. 152; Hart v. Kendall, 82 Ala. 144; La- mar v. Pearre, 90 Ga. 377; Dean v. Wilkinson, 126 Ind. 338; Zim- merman v. Bloom, 43 Minn. 163; Com. v. Densmore, 12 Allen (Mass.), 537. Statute of limitations. — Massachusetts Public Statutes, c. 197, sec. 16, and Maine Rev. Stat., c. 81, sec. 100, are similar to 9 Geo. IV., c. 14, sec. 3, cited in the note. See also Libby v. Brown, 78 Me. 492; Rogers v. Anderson, 40 Mich. 290; Indiana Rev. Stat., sec. 303; Wisconsin Rev. Stat., sec. 4247. An indorsement, after the statute has run, is not a declaration against interest. Coon's Appeal, 52 Conn. 186. Indorsements. — Modifying the rule of the text : Clap v. Ingersol, 2 Fairf. (Me.) 83; Coffin v. Bucknam, 3 Fairf. (Me.) 471. See Clough v. McDaniel, 58 N. H. 201 ; Runner's Appeal, 121 Pa. St. 649; Haver v. Schwyhart, 39 Mo. App. 303; White v. Beaman, 85 X. C. o. It must appear affirmatively that the indorsement was made at a time when it was against the interest of the creditor. Read v. Hurd, 7 Wend. 410; Mills v. Davis, 113 N. Y. 243; Matter of Kellogg, 104 N. Y. 648, 5 N. Y. St. R. 668, citing Risley v. Wight man, 13 Hun, 163; Hulbert v. Nichol, 20 Hun, 454; Roseboom v. Billington, 17 Johns. 182. New Jersey. Indorsements. — An indorsement of a payment on a note made by one now dead is admissible as being against interest, but only when made before the period of the Statute of Limitations has run. Stand- ing alone it is not then sufficient evidence to remove the bar of the statute. Christopher v. Wilkins, 64 N. J. Eq. 354. Declarations adverse to one's title. — Meeker v. Boyland, 28 N. J. L. 274. 176 A DIGEST OF [Part I. Maryland. Authorities. — Coale v. Harrington, 7 H. & J. 147; Railroad Co. v. Manro, 32 Md. 280. The declarations of a party paying out the money of a third per- son on his request are not admissible because not sufficiently against the declarant's interest. Railroad Co. v. Manro, 32 Md. 280. Pennsylvania. Declarations of deceased persons against interest. — Taylor v. Gould, 57 Pa. 152; tiohensack v. Mailman, 17 Pa. 154. Declarations against interest made by the husband prior to his marriage are admissible in favor of creditors as against the wife. Barnes v. Black, 193 Pa. 447. The acts of one now dead performed by him against his own inter- est are admissible in favor of those who claim through him. Alle- gheny v. Nelson, 25 Pa. 332. Entries in one's books against interest are admissible. Canal Co. v. Loyd, 4 W. & S. 393. Declarations against proprietary interest. Hiester v. Laird, 1 \V. & S. 245; Sergeant v. Ingersoll, 15 Pa. 343. Instances. — Declarations of a trustee that a certain investment was made out of the trust fund are admissible. Bank v. Tyler, 3 YV. & S. 373. Declarations of an executor that certain funds belonged to the estate are admissible. Stair v. Bank, 55 Pa. 364. A declaration of trust by one holding title to land is admissible. King v. Weible, 10 Pa. Co. Ct. 521. An admission of marriage is an admission against interest. Sei- bert's Estate, 17 Wkly. iNotes Cas. 271. Indorsements. — Modifying the rule of the text. Runner's Appeal, 1 -1 ! Pa. 649. Indorsements not admissible unless proved to have been made at a time when they were against interest. Adams v. Seitzenger, 1 Serg. & R. 243. Indorsements by the holder of a bill or note may be admissible oven though such holder be alive. But it must be shown by ex- trinsic evidence that the indorsement was made at a time when the action on the note was not barred by the Statute of Limitations, for otherwise the indorsement would not be regarded as against interest. Shaffer v. Shaffer, 41 Pa. 51 ; Clark v. Burn, 86 Pa. 502. Chap. IV.] ■ THE LAW OF EVIDENCE. 177 Article 29. declarations by testators as to contents of will. The declarations of a deceased testator as to his testa- mentary intentions, and as to the contents of his will, are deemed to be relevant when his will has been lost, and when there is a question as to what were its contents ; and when the question is whether an existing will is genuine or was improperly obtained ; and when the question is whether any and which of more existing documents than one constitute his will. In all these cases it is immaterial whether the declarations were made before or after the making or loss of the will. 68 AMERICAN NOTE. General. Authorities. — 2 Taylor on Evidence ( Chaniberlayne's 9th ed. ) , sec. 1203 A; McKelvey on Evidence, p. 213; Collagan v. Burns, 57 Me. 449; Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322; Leonard v. Quintan, 121 Mass. 579. On the issue of undue influence, declarations are admissible. Denison's Appeal, 29 Conn. 402; Canada's Appeal, 47 Conn. 463. ^Sugden v. St. Leonards, 1876, L. R. 1 P. D. (C. A.) 154: and see Gould v. Lakes, 1880, L. R. 6 P. D. 1. In questions between the heir and the legatee or devisor such statements would probably be rele- vant as admissions by a privy in law, estate, or blood. Gould v. Lakes, 1880, L. R. 6 P. D. 1 ; Doe v. Palmer, 1851, 16 Q. B. 747. The decision in this case at p. 757, followed by Quick v. Quick, 1864, 3 Sw. & Tr. 442, is overruled by Sugden v. St. Leonards. 12 178 A DIGEST OF [Part I. In ejectment, evidence of directions to the scrivener to make a different disposition by will than that made is inadmissible. Chap- pel v. A very, 6 Conn. 34. Lost will. — In re Johnson's Will, 40 Conn. 587; McDonald v. Mc- Donald, 142 Ind. 55; In re Page, 118 111. 576; Valentine's Will, 93 Wis. 45; Apperson v. Dowdy, 82 Va. 776; Behrens v. Behrens, 4T O. St. 323; Byers v. Hoppe, 66 Md. 206; In re Lambie, 97 Mich. 49. Different wills. — On the question of admitting a will to probate,, declarations of the testator that he meant a prior will to take effect and supposed it would are admissible. Canada's Appeal, 47 Conn. 463. See, also, Valentine's Will, 93 Wis. 45 ; Estate of Johnson, 57 Cal. 529. A testator's declarations are admissible to prove the publication of the will. Lane v. Lane, 95 N. Y. 494; Gilbert v. Knox, 52 N. Y. 125. New Jersey. Want of capacity. — Conduct and declarations of the testator at time of making the will are admissible to show want of capacity or fraud. Meeker v. Boylan, 28 N. J. L. 274; Den. v. Van Cleve, 2 South. 589, 654; Pancoast v. Graham, 15 N. J. Eq. 295; Boylan v^ Meeker, 15 N. J. Eq. 310; Matter of Vanderveer, 20 N. J. Eq. 463; 8. C, modified, 21 N. J. Eq. 561 ; Day v. Day, 3 N. J. Eq. 549. Declarations of testator are admissible to show the condition of his mind, not to prove undue influence. Middleditch v. Williams, 47 N. J. Eq. 585, reversing 8. C, 45 N. J. Eq. 726. Declarations of a testator admitted to show the real consideration of a deed expressed on its face as love and affection, to prove the transaction not an advancement. Tlattersley v. Bissett, 50 N. J. Eq. 577, 51 N. J. Eq. 597. Contents of a will shown by testator's declarations as to his inten- tions. Den. v. Van Cleve, 2 South. 677. Latent ambiguity. — Declarations of a testator are admissible to explain a latent ambiguity in his will. Griscom v. Evens, 40 N. J. L. 402 : Burnet v. Burnet, 30 N. J. Eq. 595 ; Den. V. Cubberly, 7 Hal. 308: Hand v. Huffman, 3 Hal. 71; Eaton v. Cook. 25 N. J. Eq. 55; Evans v. Hooper, 3 N. J. Eq. 204. Forgery of will. — Where issue is whether a will is a forgery, dec- larations of alleged testator not admissible. Gordon's Case, 50 N. J. Eq. 397, 52 N. J. Eq. 317. CiiAr. IV.] THE LAW OF EVIDENCE. 179 Declarations not admissible. — Declarations of a testator at the time of making his will as to his meaning or intention or the in- structions to the scrivener are not admissible. Yard v. Cart/tan, Pen. 936; Vernon v. Marsh, 3 N. J. Eq. 502; Leigh v. Saoidge, 14 N. J. Eq. 124; Lynch v. Clements, 24 N. J. Eq. 431; Jones v. Jones, 13 N. J. Eq. 236; Evans v. Hooper, 3 N. J. Eq. 204; Massaker v. Massaker, 13 N. J. Eq. 264. Maryland. Lost will. — Byers v Hoppe, 06 Md. 206. Declarations of a testator are admissible as corroborative evi- dence of the execution of a certain will, but not until other direct evidence of the fact is given. Hoppe v. Byers, 60 Md. 381. Capacity to make a will. — - Declarations of a testator made while sane to the effect that he was crazy when he made a v. ill are ad- missible as to his capacity to make such will. Colvin v. Warford, 20 Md. 357. Declarations of a testator are admissible on the question of un- due influence and fraud to show his mental condition. Griffith \ Dieffenderffer, 50 Md. 466. Intention of testator. — ■ The instructions given to the draftsman by the testator arc not admissible to show his intention. Frick v. Frick, 82 Md. 218. Declarations of the testator are not admissible to render a will inoperative. Sewell v. SUngluff, 57 Md. 537 ; Moore v. McDonald, 68 Md. 321. Such declarations are not admissible to aid in the interpretation of a will. Zimmerman v. Hafer, 81 Md. 347. Pennsylvania. Contents of a lost will may be proved by declarations of the tes- tator. Foster's Appeal, 87 Pa. 67. Declarations of testatrix admitted to show weakness of mind on question of undue influence. Robinson v. Robinson, 203 Pa. 400: Rambler v. Tryon. 7 S. & R. 00. Declarations of a testator are not admissible as direct proof to establish a paper as his will, but may be given in corroboration. Such testimony is dangerous. Sirope v. Donnelly, 190 Pa. 417. Extrinsic evidence allowed to prove the intention of the testator. Sharp v. Wightman, 205 Pa. 285. 180 A DIGEST OF [Part I. Article 30. 69 declarations as to public and general rights. Declarations are deemed to be relevant (subject to the third condition mentioned in the next article) when they relate to the existence of any public or general right or custom or matter of public or general interest. But declara- tions as to particular facts from which the existence of any such public or general right or custom or matter of public or general interest may be inferred, are deemed to be irrelevant. A right is public if it is common to all Her Majesty's subjects, and declarations as to public rights are relevant whoever made them. A right or custom is general if it is common to any considerable number of persons, as the inhabitants of a parish, or the tenants of a manor. Declarations as to general rights are deemed to be relevant only when they were made by persons who are shown, to the satisfaction of the judge, or who appear from the circumstances of their statement, to have had competent means of knowledge. Such declarations may be made in any form and manner. 69 See Note XX. Also see Weeks v. Sparke, 1813, 1 M. & S. 679; Crease v. Barrett, 1.835, 1 C. M. & R. 919. Article 5 has much in common with this article. Lord Blackburn's judgment in Neill v. Duke of Devonshire, 1882, L. R. 8 App. Ca., pp. 186, 187, especially explains the law. Chap. IV.] THE LAW OF EVIDENCE. LSI Illustrations. (a) The question is, whether a Toad is public. A statement by A (deceased) that it is public is deemed to be relevantJO A statement by A (deceased) that he planted a willow (still stand- ing) to show where the boundary of the road had been when he was a boy is deemed to be irrelevant.? 1 (6) The following are instances of the manner in which declara- tions as to matters of public and general interest may be made: — They may be made in Maps prepared by or by the direction of persons interested in the matter; 72 Copies of Court rolls ;73 Deeds and leases between private persons ;74 Verdicts, judgments, decrees, and orders of Courts, and similar bodies75 if finals AMERICAN NOTE. General. Authorities. — 9 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 9 2 Taylor on Evidence (Chamberlayne's 9th ed.), sec. 607 et seq. Lawrence v. Tennant, 64 N. H. 543; Hampson v. Taylor, 15 R. I. 83 Wooster v. Butler, 13 Conn. 309; 8. W. Sch. Dist. v. Williams, 48 Conn. 504; Drury v. Midland R. R. Co., 127 Mass. 571: Dillingham V. Snow, 5 Mass. 552; People v. Velarde, 59 Cal. 457: Shuttle v. Thompson, 15 Wall. 151; Mullaney v. Duffy, 145 111. 559; Young v. Kansas City, etc., R. Co., 39 Mo. App. 52; Thoen v. Roche. 57 Minn. 135; Birmingham v. Anderson, 40 Pa. 506. Ancient deeds and wills are sometimes admissible to provf private matters. Oldtown v. Shapleigh, 33 Me. 278; Greenfield v. Camden, 70 Crease v. Barrett, per Parke, B., 1835, 1 C. M. & R. at p. 929. 71 R. v. Bliss, 1S37, 7 A. & E. 550. 72 Implied in Hammond v. Bradstreet , 1854, 10 Ex. 390, and Pipe v. Fulcher, 1858, 1 E. & E. 111. In each of these cases the map was rejected as not properly qualified. 73 Crease v. Barrett, 1835, 1 C. M. & R. at p. 92S. upiaxton v. Dare, 1829, 10 B. & C. 17. is Duke of Newcastle v. Broxtowe, 1832, 4 B. & Ad. 273. 7e Pim v. Currell, 1840, 6 M. & W. 234, 266. 182 A DIGEST OF [Part I. 74 Me. 56; Ward v. Oxford, 8 Pick. (Mass.) 476; Wright v. Boston, 126 Mass. 161. The position of a line separating two towns is a matter of public interest, and declarations are admissible, even though they concern the position of a single house, as related to that line. Abington v. North Bridgeicater, 23 Pick. (Mass.) 170, 174. The incorporation of a town may be proved by declarations. Dil- lingham v. Snow, 5 Mass. 547. Declarations as to private rights are generally inadmissible. Boston, etc., Co. v. Hanlon, 132 Mass. 4S3. The declarant must be dead. Flagg v. Mason, 8 Gray (Mass.), 556; Whitney v. Bacon, 9 Gray (Mass.), 206. Under this rule the declarations of owners and tenants in posses- sion only are admissible. Bartlett v. Emerson, 7 Gray (Mass.), 174. The declarations of one holding under a bond for a deed may be admissible. Niles v. Patch, 13 Gray (Mass.), 254. Boundary cannot be shown by tradition. Hall v. Mayo, 97 Mass. 41G. Deeds and leases. — Drury v. Midland R. R. Co., 127 Mass. 571. Ancient records. — See Willey v. Portsmouth, 35 X. H. 303. Ancient records of a town, showing the location of a highway, are admissible. State v. Yale Mills, 63 X. H. 4. Maps. — As to the admissibility of maps, see Smith v. Forrest, 49 N. II. 230 ; McCausland v. Fleming, 63 Pa. St. 36. Private boundaries.— The declarations of a landowner as to the location of his boundaries, made while pointing them out, are ad- missible. Royal v. Chandler, 33 Me. 150; Child v. Kingsbury, 46 Vt. 47; Powers v. Silby, 41 Vt. 28S. Contra, Chapman v. Twitchell, 37 Me. 59. They have been held admissible in some States, if not made while pointing out boundaries. Smith v. Forrest, 49 N. H. 230; Lawrence v. Tennant, 04 X. II. .">:>2 ; Great Falls v. Worster, 15 X. H. 437. It has been held that if it was for the interest of the declarant to misstate at the time he made the declaration, it is inadmissible. Child v. Kingsbury. 46 Vt. 47, 53. The rule as to declarations, with reference to private boundary, is confined to monuments and lines and boundaries, but does not ex- tend to acts of ownership, or possession, or to any other facts. Wcndall v. Abbott, 45 X. H. 349. Chap. IV.] THE LAW OF EVIDENCE. 183 Private boundary may not be proved by declarations of deceased persons not accompanying any act performed upon the land. Hay- den v. Stone, 121 Mass. 413. Declarations of a deceased owner of land, as to his boundary, made while in possession, and in the act of pointing out his boundaries, are admissible if no interest to misrepresent them at the time ex- isted. Currier v. Gale, 14 Gray (Mass.), 504; Wood v. Foster, 8 Allen (Mass.), 24; Daggett v. Shaw, 5 Mete. 223; Bartlett v. Emer- son, 7 Gray (Mass.), 171; Davis v. Sherman, 7 Gray (Mass.), 291; Holmes v. Turner's Falls Co., 150 Mass. 535; Robinson v. Dewhurst, OS Ted. Rep. 336. So when made by surveyors or others with knowl- edge. Kramer v. Goodlander, 98 Pa. St. 366; Clement v. Packer, 125 U. S. 309; Fry v. Stoioers, 92 Va. 13: Bethea v. Byrd, 95 N. C. 3*09; Lemmon v. Hartsoolc, 80 Mo. 13. The declarations of ancient persons as to private boundaries are admissible. Swift's System, p. 244; 1 Swift's Digest, side p. 766; Swift's Evidence, p. 123; Wooster v. Butler, 13 Conn. 316; Kinney v. Famsworth, 17 Conn. 363; Higley v. Bidwell, 9 Conn. 451; Mer- win v. Morris, 71 Conn. 572. Contra, in ease of interested persons, Porter v. Warner, 2 Root (Conn.), 22. Particular facts inadmissible. — Sustaining text: S. W. Sch. Dist. v. Williams, 48 Conn. 504 ; Noyes v. Ward, 19 Conn. 250, 269 ; Woos- ter v. Butler, 13 Conn. 316; Hall v. Mayo, 97 Mass. 416. New Jersey. Private boundaries. — Declarations as to boundary made by an owner of land while on the ground and pointing out such boundary are admissible, if he had no interest to misrepresent at the time. Curtis v. Aaronson, 49 N. J. L. 68. A map indorsed by a former owner is competent evidence of bound- ary. Opdyke v. Stephens, 28 N. J. L. 84. Pennsylvania. Boundaries. — Declarations of a deceased surveyor are receivable to prove public boundaries. Birmingham v. Anderson, 40 Pa. 506. Reputation and hearsay received as to boundary. Nieman v. Ward, 1 W. & S. 68 ; Birmingham v. Anderson, 40 Pa. 506 ; Bu- chanan v. Moore, 10 S. & R. 275; Bender v. Pitzer, 27 Pa. 333. 184 A DIGEST OF [Part L An ancient draft from proper custody admissible to prove bound- ary. McCausland v. Fleming, 63 Pa. 36. Declarations of a former owner as to boundary. Dawson v. Mills, 32 Pa. 302; Gratz v. Beates, 45 Pa. 495. Declarations of a deceased owner of ^nd, as to his boundary, made while in possession, and in the act of pointing out his boundaries, are admissible if no interest to misrepresent them at the time ex- isted. So when made by surveyors or others with knowledge. Kra- mer v. Goodland'er, 98 Pa. 366. Maps. — As to the admissibility of maps, see McCausland v. Flem- ing, 63 Pa. 36. Ancient facts. — Reputation in ancient tilings and ancient docu- mentary evidence are admissible. Old Eagle School, 36 Wkly. Notes Cas. 348. An unofficial survey and the field notes thereof are not admissible however ancient. Rogers v. Coal & Iron Co., 31 Leg. Int. 325. Such evidence was admitted to establish the identity of land sold for taxes. Russell v. Werntz, 24 Pa. 337. Article 31.* declarations as to tedigree. A declaration is deemed to be relevant (subject to the conditions hereinafter mentioned) if it relates to the existence of any relationship between persons, whether living or dead, or to the birth, marriage, or death of any person, by which such relationship was constituted, or to the time or place at which any such fact occurred, or to any fact immediately connected with its occurrence.' 7 Such declarations may express either the personal know- ledge of the declarant, or information given to him by other persons qualified to be declarants, but not information collected by him from persons not qualified to be de- 77 Illustration (c). * See Note XXI. Chap. IV.] THE LAW OF EVIDENCE. 185 clarants. 78 They may be made in any form and in any document or upon anything in which statements as to relationship are commonly made. 79 The conditions above referred to are as follows : — ( 1 ) Such declarations are deemed to be relevant only in cases in which the pedigree to which they relate is in issue, and not to cases in which it is only relevant to the issue ; 80 (2) They must be made by a declarant shown to be legitimately related by blood to the person to whom they relate ; or by the husband or wife of such a person. 81 (3) They must be made before the question in relation to which they are to be proved has arisen; but they do not cease to be deemed to be relevant because they were made for the purpose of preventing the question from arising. This condition applies also to statements as to public and general rights or customs and matters of public and general interest. 7S Davies v. Lowndes, 1843, 6 M. & G. at p. 527. 79 Illustration (d). 80 Illustration (6). 81 Shrewsbury Peerage Case, 1857, 7 H. L. C. 26. For Scotch law, see Lauderdale Peerage Case, 1885, L. R. 10 App. Ca. 692; also Lovat Peerage Case, 1885, ib. 763. In In re Turner, Glenister v. Harding, 1885, 29 Ch. Div. 985, a declaration by a deceased reputed father of his daughter's illegitimacy was admitted on grounds not very clear to me: and on the authority of two Nisi Prius cases, Morris v. Davies, 1825, 3 C. & P. 215, and Cope v. Cope, 1833, 1 Mo. & Ro. 269. See note to Article 34. 82 Berkeley Peerage Case. 1811, 4 Cam. 401-417; and see Lovat Peerage, 1885, 10 App. Ca. 797. 186 A DIGEST OF [Part I. Illustrations. (a) The question is, which of three sons (Fortunatus, Stephanus, and Achaicus) born at a birth is the eldest. The fact that the father said that Achaicus was the youngest, and he took their names from St. Paul's Epistles (see 1 Cor. xvi. 17) , and the fact that a relation present at the birth said that she tied a string round the second child's arm to distinguish it, are relevant.83 (b) The question is, whether A, sued for the price of horses and pleading infancy, was on a given day an infant or not. The fact that his father stated in an affidavit in a Chancery suit to which the plaintiff was not a party, that A was born on a certain day, is irrelevant.84 (c) The question is, whether one of the cestuis que vie in a lease for lives is living. The fact that he was believed in his family to be dead is deemed to be irrelevant, as the question is not one of pedigree.85 {d) The following are instances of the ways in which statements as to pedigree may be made: By family conduct or correspondence; in books used as family registers; in deeds and wills; in inscriptions on tombstones, or portraits; in pedigrees, so far as they state the relationship of living persons known to the compiler.86 AMERICAN NOTE. General. Authorities. — 18 Am. & Eng. Encyclopaedia of Law (1st ed.), p. 258 et seq.; Abbott's Trial Evidence (2d ed.), p. 115 et seq. Hearsay evidence on questions of pedigree is not admissible, unless the party who made the declarations or entries can be named, and is deceased, and appears to have been a relative or a connection, or an inmate of the family, and to have made the declarations or entries 83Vin. Abr., 1731, tit. Evidence, T. b. 91. The report calls the son Achicus. 84 Guthrie v. Haines, 1884, 13 Q. B. D. 818. In this case all the authorities on this point are fully considered. 85 Whittuck v. Walters, 1830, 4 C. & P. 375. 86 In 1 Ph. Ev. 203-215; Taylor, ss. 648-652; and Roscoe's N. P. 44-46, these and many other forms of statement of the same sort are mentioned ; and see Davies v. Lowndes, 1843, 6 M. &• G. at pp. 526, 527. Chap. IV.] THE LAW OF EVIDENCE. 187 under such circumstances as preclude any presumption of interest or bias. Chapman v. Chapman, 2 Conn. 349. It is not enough to show a general declaration that such an one inherited a particular estate and was a relative of its former owner, but the particular relationship must be pointed out, and it must be such as to make the person indicated heir to such estate. Chapman v. Chapman, 2 Conn. 350. An authenticated copy of a record of a birth, made from a state- ment of the mother, is admissible. Derby v. Salem, 30 Vt. 722. Slight proof of relationship is sufficient. Northrop v. Hale, 76 Me. 306, 309, 49 Am. Rep. 615; Faulkerson v. Holmes, 117 U. S. 38. One may testify as to his own age. Com. v. Stevenson, 142 Mass. 466; State v. Marshall, 137 Mo. 463; People v. Ratz, 115 Cal. 132; Morrison v. Emsley, 53 Mich. 564; Conn. Life Ins. Co. v. Schwenk, 94 U. S. 593, 598 (age is a question of pedigree). And the jury may consider his personal appearance. Com. v. Phillips, 162 Mass. 504; Hermann v. State, 73 Wis. 248. What may be shown. — First paragraph of text. Morrill v. Foster. 33 N. H. 379; Fulkerson v. Holmes, 117 U. S. 389; Pickens's Estate, 163 Pa. 14; Jackson v. Jackson, 80 Md. 176; Cuddy v. Brown, 78 111. 415; Shorten v. Jndd, 56 Kan. 43; Robb's Estate, 37 S. C. 19; Haddock v. B. & M. R. R. Co., 3 Allen (Mass.), 298. Death is a question of pedigree. Webb v. Richardson, 42 Vt. 465. Pedigree in issue. — Modifying rule of the text. North Brookfield v. Warren, 16 Gray (Mass.), 174. Place. — The place of birth cannot be thus shown. Greenfield v. Camden, 74 Me. 56; Tyler v. Flanders, 57 N. H. 618; Union v. Plain- field, 39 Conn. 564. 565. Nor can the former place of residence. Londonderry v. Andover, 28 Vt. 416. See Jackson v. Jackson, 80 Md." 176; Byers v. Wal- lace, S7 Tex. 503. 511 : Wise v. Wynn, 59 Miss. 588; Adams v. Swan- sea, 116 Mass. 591, 596; Wilmington v. Burlington, 4 Pick. (Mass.) 174. Death of declarant. — The declarant must be dead. Northrop v. Hale, 76 Me. 306 ; Mooers v. Bunker, 29 N. H. 420 ; Chapman v. Chap- man, 2 Conn. 347. 7 Am. Dec. 277. Whose declarations admissible. — Northrop v. Hale, 76 Me. 306; Waldron v. Tut tie, 4 N. H. 371 ; Haddock v. B. cf- il/. i?. /?. Co., 3 Al- len (Mass.), 298, 81 Am. Dec. 656. Common repute cannot be shown. Blaisdell v. Bickum, 139 Mass. 250. 188 A DIGEST OF [Part I. There can be no evidence of pedigree, except such as consists of the declarations of relatives of the family. Inhabitants of South Hampton v. Fowler, 54 N. H. 197 ; Sitler v. Gehr, 105 Pa. St. 577. As to what is embraced under " general reputation in the family," see In re Hurlburt's Estate, 6S Vt. 366, 35 Atl. 77, 35 L. R. A. 794. Family reputation, based upon declarations of deceased members, may be shown. Hurlburt's Estate, 68 Vt. 366, 35 Atl. 77, 35 L. R. A. 794; Eastman v. Martin, 19 N. H. 152; Garland v. Eastman, 107 111. 535; Eaton v. Talmadge, 24 Wis. 217; Pickens's Estate, 163 Pa. 14. Ante litem motam. — Northrop v. Hale, 76 Me. 306, 49 Am. Rep. 615. Sustaining text: Chapman v. Chapman, 2 Conn. 347; Com. v. Felch, 132 Mass. 23; Stein v. Bowman, 13 Pet. 209; Metheny v. Bohn, 160 111. 263; Barnum v. Barnum, 42 Md. 251, 304. Form. — Parchment pedigree and inscription on tombstone are admissible. North Brookfteld v. Warren, 16 Gray (Mass.), 171; Mc- Claskey v. Barr, 54 Fed. Rep. 781 (parchment pedigree and tomb- stone) ; Greenleaf v. Dubuque, etc., R. Co., 30 la. 301 (family Bible); Pearson v. Pearson, 46 Cal. 610 (will) ; Fulkerson v. Holmes, 117 U. S. 389 (deeds) ; Scharff v. Keener, 64 Pa. St. 376 (deeds). Source of information. — Second paragraph of text. Eisenlord v. Clum, 126 N. Y. 552, 565. Death. — Death may be a question of pedigree. Clark v. Owens, 18 N. Y. 434; People v. Miller, 30 Misc. Rep. 355, 14 N. Y. Cr. 407, 63 N. Y. Supp. 949. How made. — Second paragraph of text (last sentence). Eisen- lord v. Clum, 126 N. Y. 552, 566. Family conduct. — The declaration may be by acts as family con- duct. Clark v. Owens, 18 N. Y. 434. Written declarations. — The declarations may be made in writing. Jackson v. Cooley, 8 Johns. 128, 131; Jackson v. Russell. 4 Wend. 543. Family Bible. — A family Bible is admissible to prove the date of a birth. McDeed v. McDecd. 67 111. 546. New Jersey. General rule admitting hearsay evidence of pedigree. — Westfield v. Warren, 3 Hal. 249. As to manner of making statements as to pedigree, see Bussom v. Forsyth, 32 N. J. Eq. 277. Chap. IV.] THE LAW OF EVIDENCE. 189 Recognition by kinsmen. — Where legitimacy is in question, evi- dence that the kinsmen of the parents recognized the child as a rela- tion is admissible to prove the marriage. Gaines v. Mining Co., 32 N. J. Eq. 86, 33 N. J. Eq. 603. Family record. — A family record of births held inadmissible. Houston v. Cooper, Pen. 866. Marriage. — Declarations are not admissible to prove the existence of marriage as an independent fact. Westfield v. Warren, 3 Hal. 249. Such declarations admissible to prove the fact of marriage, when the question in issue is pedigree. Westfield v. Warren, 3 Hal. 249; E. Windsor v. Montgomery, 4 Hal. 39. A marriage certificate is competent evidence of the marriage on a question of legitimacy when properly authenticated. Gaines v. Mining Co., 33 N. J. Eq. 603, 32 N. J. Eq. 86. Place of birth. — Declaration of a father not admissible to prove the place of a child's birth. Independence v. Pompton, 4 Hal. 209. Maryland. General authorities. — Barnum v. Barnum, 42 Md. 251; Jones v. Jones, 36 Md. 447; Pancoast v. Addison, 1 H. & J. 350; Raborg v. Hammond, 2 H. & G. 42; State v. Greenwell, 4 G. & J. 407. Hearsay is admitted as to matters of pedigree on the ground of necessity. Copes v. Pearce, 7 Gill, 247. Suspicion and doubt may reasonably attach to such declarations by reason of antiquity and chances for error. Sprigg v. Moale, 26 Md. 497. The former place of residence cannot be thus shown. See Jackson v. Jackson, 80 Md. 176. Family reputation admitted to show which of two brothers died first. Raborg v. Hammond, 2 H. & J. 42. Tradition in a family that a member thereof died seized of cer- tain real estate was admitted. Pancoast v. Addison, 1 H. & J. 350. Family Bible. — Entries in a family Bible are admissible without proof that they were made by a member of the family. Weaver v. Leiman, 52 Md. 708. Tf the book is produced from proper custody. Jones v. Jones, 45 Md. 144. Entries in a Bible made years after the event are entitled to little weight. Ameij v. Cockey, 73 Md. 297. L90 A DIGEST OF [Pakt I. Relationship.— Common reputation admitted to prove that two persons were brothers of the whole blood. Johnson v. Howard, 1 H. & McH. 281. Declarations of members of the family are admissible to deter- mine who are next of kin. Jones v. Jones, 36 Md. 447. The term " pedigree " includes descent and relationship, and the facts of birth, marriage, and death. Craufurd v. Blackburn, 17 Md. 49: Copes v. Pearce, 7 Gill, 247. Relationship of declarant. — The declarant must be proved by ex- trinsic evidence to be connected with at least one branch of the family. Craufurd v. Blackburn, 17 Md. 49; Jackson v. Jackson, SO Md. 176. Ante litem motam. — Sustaining text: Barnum v. Barnum, 42 Md. 251, 304. Marriage and legitimacy. — Declarations of deceased persons are admissible on the question of legitimacy, and to prove a marriage at a particular time. Jackson v. Jackson, 80 Md. 176. Marriage may be proved by declarations of the parties made ante litem motam. Craufurd v. Blackburn, 17 Md. 49; Barnum v. Bar- num, 42 Md. 251. Personal resemblance. — Relationship cannot be proved by evidence of personal resemblance. Jones v. Jones, 45 Md. 144. General reputation. — Whether general reputation is admissible see Boone v. Purnell, 28 Md. 607. Illustration (a). — Weaver v. Leiman, 52 Md. 708. Pennsylvania. What may be proved. — Family reputation admissible to prove one's age. Watson v. Breicster, 1 Pa. 381; Carskadden v. Poorman, 10 Watts, 82; Albertson v. Robeson, 1 Dall. 9. Descent and relationship, birth, marriage, and death. Trust Co. v. Rosenagle, 11 Pa. 507 ; Pickens's Estate, 163 Pa. 14. Legitimacy of children may be proved by the declarations of their parents. Kenyon v. Ashbridge, 35 Pa. 157. Family reputation, based upon declarations of deceased members, may bo shown. Pickens's Estate, 163 Pa. 14. Family conduct or reputation is admissible. Watson v. Breicster, 1 Pa. 381. Ancient hearsay ante litem motam. Strickland v. Poole, 1 Dall. 14. Relationship of declarant. — Such declarations are admissible if Cuai\ IV.] THE LAW OF EVIDENCE. 101 shown to have been made by a member of the same family, though not of the same branch. Hitler v. Gehr, 105 Pa. 577. The fact of relationship must be proved by evidence outside of the declaration itself. Sitter v. Gehr, 105 Pa. 577. Form of statement. — The statement may be in a will. Kenyon v. Ashbridge, 35 Pa. 157; Richard v. Brehm, 73 Pa. 140. The statement may be in the form of a deposition. Life Ins. Co. v. Rosenagle, 77 Pa. 507. Letters addressed to the wife. Vincent's Appeal, GO Pa. 228. An inscription on a tombstone relating to pedigree was rejected because of lack of proof as to the identity of the person buried be- neath the stone. Gehr v. Fisher, 143 Pa. 311. Bible entries. — Family Bible entries not admissible when mere copies of another record. Curtis v. Patton, 6 S. & R. 135. Entry in the family Bible admitted to prove age. Carskadden V. Poorman, 10 Watts, 82. Leaf from a family Bible received. Douglass v. Sanderson, 2 Dall. 116; 8. C, 1 Yeates, 15. Deeds. — Recitals in a deed are admissible as to pedigree. Paxton v. Price, 1 Yeates, 500; Appeal of Bicking, 2 Brewst. 202; Bowser v. Cravener, 56 Pa. 132; Scharff v. Keener, 64 Pa. 376; Morris v. Vanderen, 1 Dall. 64. A recital in a deed as to pedigree is not admissible in favor of the grantor. Murphy v. Loyd, 3 Whart. 538. Akticle 32.* evidence given in former proceedings when relevant. Evidence given by a witness in a previous action is relevant for the purpose of proving the matter stated in a subsequent proceeding, or in a later stage of the same pro- ceeding, when the witness is dead, 8 " or is mad, 88 or so ill that he will probably never be able to travel, 89 or is kept out of * See Note XXII. 87 Mayor of Doncaster v. Day, 1810, 3 Tau. 262. 88 R. v. Eriswell, 1790, 3 T. R. 720. 8» R. v. Hogg, 1833, 6 C. & P. 176. 192 A DIGEST OF [Part I. the way by the adverse party, 90 or in civil, but not, it seems, in criminal, cases, is out of the jurisdiction of the Court, 91 or, perhaps, in civil, but not in criminal, cases, when he can- not be found. 92 Provided in all cases — (1) That the person against whom the evidence is to be given had the right and opportunity to cross-examine the declarant when he was examined as a witness ; 93 (2) That the questions in issue were substantially the same in the first as in the second proceeding ; 93 Provided also — (3) That the proceeding, if civil, was between the same parties or their representatives in interest ; 93 (4) That, in criminal cases, the same person is accused upon the same facts. 94 If evidence is reduced to the form of a deposition, the provisions of Article 90 apply to the proof of the fact that it was given. The conditions under which depositions may be used as evidence are stated in Articles 140-142. 90 R. v . Scaife, 1851, 17 Q. B. 238, 243. 91 Fry v. Wood, 1737, 1 Atk. 444; R. v. Scaife, 1851, 17 Q. B. at p. 243. »2Godbolt, 1623, p. 326, case 418; R. v. Scaife, 1851, 17 Q. B. at p. 243. 93 Doe v. Tatham, 1834, 1 A. & E. 3, 19; Doe v. Derby, 1834, 1 A. & E. 783, 785, 789. See, as a late illustration, as to privies in estate, Llanover v. Homfray, 1880, 19 Ch. Div. 224. In this case the first set of proceedings was between lords of the same manor and tenants of the same manor as the parties to the second suit. 94 Beeston's Case, 1854, Dears. 405. Chap. IV.] THE LAW OF EVIDENCE. 193 AMERICAN NOTE. General. Authorities. — 11 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 523 et seq.; 1 Greenleaf on Evidence (15th ed.), sec. 163 et seq. Former testimony before arbitrators may be proved. Bailey v. Woods, 17 N. H. 365. As to the testimony of parties, see Blair v. Ellsworth, 55 Vt. 415. Evidence at preliminary hearing. — The rule allows the admission of evidence at a preliminary examination if the party against whom it is offered was present. Rex v. Barber, 1 Root (Conn.), 76; State v. Hooker, 17 Vt. 658; Com. v. Richards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608. Deceased witness. — Sustaining text: Watson v. Lisbon Bridge, 14 Me. 201; Orr v. Hadleij, 36 N. H. 575; Glass v. Beach, 5 Vt. 172; Matheivson v. Sargeant, 36 Vt. 142; Johnson v. Poioers, 40 Vt. 611; Earl v. Tupper, 45 Vt. 275; Chase v. Spring Vale Mills Co., 75 Me. 156; Mattox v. U. S., 156 U. S. 237; Barnett v. People, 54 111. 325; State v. Elliott, 90 Mo. 350; State v. George, 60 Minn. 503; Lane v. Brainerd, 30 Conn. 565; Woods v. Keyes, 14 Allen (Mass.), 238, 92 Am. Dec. 766; Corey v. Jones, 15 Gray (Mass.). 543; Com. v. Rich- ards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608; Warren v. Nichols, 6 Mete. (Mass.) 261; Yale v. Comstock, 112 Mass. 267; Costigan v. Lunt, 127 Mass. 355; Radclyffe v. Barton, 161 Mass. 327; Thornton v. Britton, 144 Pa. 126; Stout v. Cook, 47 111. 530; Cassaday v. Trus- tees, 105 111. 560; Benson v. Shoticell, 103 Cal. 163; Hudson v. .Roos, 76 Mich. 173; Minn. Mill. Co. v. Minn., etc., R. Co., 51 Minn. 504. Insane witness. — Sustaining text. Whitaker v. Marsh, 62 N. H. 477 ; Stein v. Swcnson, 46 Minn. 360 ; Howard v. Patrick, 38 Mich. 795. Illness of witness. — Illness is sometimes held sufficient to allow testimony to come in under the rule of this article. Chase v. Spring Vale Mills Co., 75 Me. 156; Scoville v. Hannibal, etc., R. Co., 94 Mo. 84. In criminal cases the illness of a witness does not render his former testimony admissible. State v. Staples, 47 N. H. 113; Com. v. McKenna, 158 Mass. 207. 13 194 A DIGEST OF [Paet I. Forgetful witness. — The mere fact that the witness cannot recall the facts does not render the evidence competent. Robinson v. Gil- man, 43 N. H. 295. Absent witness. — The former testimony of an absent witness can- not be shown in a criminal case. U. S. v. Angell, 11 Fed. Rep. 34; People v. Gordon, 99 Cal. 227; Pitman v. State, 92 Ga. 480; Gastrell v. Phillips, 64 Miss. 473; Bemey v. Mitchell, 34 N. J. L. 337. Contra, Thompson v. State, 106 Ala. (when indefinite) ; McNamara v. State. 60 Ark. 400. Witness spirited away. — One under indictment induced a wit- ness who had testified against him before the grand jury to go away, so that he could not be had before the petit jury. Held, that the State might prove what the witness stated before the grand jury. Rex v. Barber, 1 Root (Conn.), 76. The right to cross-examine in previous trial. — Johnson v. Powers, 40 Vt. 611; Wheeler v. Walker, 12 Vt. 427; Reynolds v. U. S., 98 U. S. 145, 159; Wright v. Cunesty, 41 Pa. St. 102, 111; Black v. Wood- row, 39 Md. 194. Same parties. — Lane v. Brainerd, 30 Conn. 565 ; Orr v. Hadley, 36 N. II. 575; Johnson v. Powers, 40 Vt. 611 ; Earl v. Tupper, 45 Vt. 275 ; Chase v. Spring Vale Mills Co., 75 Me. 156 ; Walbridge v. Knip- per, 96 Pa. 48, 51; Marshall v. Hancock, 80 Cal. 82; Allen v. Cho- teau, 102 Mo. 309; Phil., W. & B. R. R. Co. v. Howard, 13 How. (U. S.) 307. Similarity of issues. — Sustaining text. Melvin v. Whiting, 7 Pick. (Mass.) 79; Radclyffe v. Barton, 161 Mass. 327; Lane v. Brain- erd, 30 Conn. 565; Orr v. Hadley, 36 N. H. 575. Who may testify. — Any one who heard the former testimony may give evidence as to what was said. Emery v. Fowler, 39 Me. 326 ; Sage v. State, 127 Ind. 15; Hatchings v. Corgan, 59 111. 70 (juror) ; Hepler v. Bank, 97 Pa. 420; Harrison v. Charlton, 42 la. 573; Bank v. Leonard, 40 Neb. 677; Woods v. Keyes, 14 Allen (Mass.), 236. As for instance an attorney. Earl v. Tupper, 45 Vt. 275 ; Costigan v. Lunt, 127 Mass. 354. It has been held however that he must give substantially the language used. Costigan v. Lunt, 127 Mass. 354; Woods v. Keyes, 14 Allen (Mass.), 238, 92 Am. Dec. 766; Warren v. Nichols, 6 Mete. (Mass.) 267: Corey v. Jones, 15 Gray (Mass.), 545; Com. v. Rich- ards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608; Yale v. Comstock, 112 Mass. 267. Chap. IV.] THE LAW OF EVIDENCE. 19J» The witness need state only the substance of the testimony. Lime Rock Bank v. Hewett, 52 Me. 531; Emery v. Fowler, 39 Me. 326,, 63 Am. Dec. 627; Wung v. Dearborn, 22 N. H. 377; Marsh v. Jones, 21 Vt. 378, 52 Am. Dec. 67; Williams v. Willard, 23 Vt. 369; John- son v. Powers, 40 Vt. 611; Ruch v. Rock Island, 97 U. S. 693; State v. Able, 65 Mo. 357; ,S*afe v. O'Brien, 81 la. 88. How proven. — The former testimony may be proved by witnesses or from the stenographer's minutes duly authenticated. Yale v. Corn- stock, 112 Mass. 267; Quinn v. Ualbert, 57 Vt. 178. Or by the judge's minutes properly authenticated. Johnson v. Powers, 40 Vt. 611;. Whitcher v. Morey, 39 Vt. 459. See also Luetgert v. Volker, 153 111. 385; Labor v. Crane, 56 Mich. 585; Jackson v. State, 81 Wis. 127; Davis v. Kline, 96 Mo. 401 (bill of exceptions). Judge's notes not admissible. — S chafer v. Schafer, 93 Ind. 586, 588. Stenographer's report. — Where a stenographer has testified that, his record is correct and that he has no recollection, his report is admissible. Keith v. State, 157 Ind. 376; Biggins v. State, 157 Ind. 57. Bill of exceptions. — In order to prove prior testimony of a de- ceased witness by a bill of exceptions, it must be proved that the bill of exceptions contains a correct statement. Fisher v. Fisher, 131 Ind. 462, 463. New Jersey. • Absent witness. — The former testimony of an absent witness can- not be shown in a criminal case. Bemey v. Mitchell, 34 N. J. L. 337. Mere absence from the jurisdiction and refusal to attend does not authorize the admission of testimony taken at a prior cause. Rail- road Co. v. Raring, 47 N. J. L. 139. How former testimony is proved. — It is sufficient to prove the substance of what the deceased witness testified. Sloan v. Somers, Spen. 66; Ramsay v. Dumars, 4 Harr. 66. A witness is not competent to prove the testimony given in an- other trial, unless he has a distinct recollection that the witness in the prior trial was sworn ; but he need not remember the exact words of the testimony if he knows its substance. Sloan v. Somers, Spen. 66. Evidence reduced to writing cannot be proved by parol. State v. Zellers, 2 Hal. 220: Sayre v. Sayre, 2 Green, 487. 196 A DIGEST OF [Past I. The fact of the former trial must be proved by the record before evidence can be admitted as to what a witness, since deceased, then testified. Chambers v. Hunt, 2 Zab. 552. Books of account must be proved, even though they were proved at a former trial. Linberger v. Latourette, 2 South. 809. Before arbitrators. — Testimony taken before arbitrators in the same cause is not admissible even though the witness be dead. Jessup v. Cook, 1 Hal. 434. Different issues. — Evidence taken in another cause between the same parties not admissible. Trimmer v. Larrison, 3 Hal. 56. By order of court. — Order entered that two suits should be heard together and that evidence taken in one should be used in the other. Krans v. Evans, 23 N. J. Eq. 180. Statute. — Testimony of a deceased party at a former trial. G. S. 1895, " Evidence,"' 12. Maryland. General authorities. — Marshall v. Haney, 9 Gill, 251; Jones v. Jones, 45 Md. 144: Calvert v. Coxe, 1 Gill, 95: Bowie v. O'Neale, 5 H. & J. 226. Witness dead. — Calvert v. Coxe, 1 Gill, 95; Bowie v. O'Neale, 5 H. & J. 226. Manner of proving. — The former testimony cannot be proved by a printed copy of the record, but it may be by one who heard it. Gis- riel v. Burrows, 72 Md. 366; Price v. Lawson, 74 Md. 499. It cannot be proved by the introduction of the bill of exceptions. Ecker v. McAllister, 54 Md. 362. The one testifying as to what a witness said at the former trial must be able to give the substance of the whole testimony, not merely what the witness said on one point. Black v. Woodrow, 39 Md. 194. The exact words arc not required, but it is not permissible to state merely t lie effect of such former testimony. Black v. 'Woodrow, 39 Md. 194: Bowie v. O'Neale, 5 H. & J. 226. A cnpv of the stenographer's notes is not admissible to prove the testimony given. Flerrick v. Sicomlcy, 56 Md. 439. Attorney's notes. — An attorney is a competent witness to prove such testimony and his notes taken at the time may be used to re- fresh his memory. Waters v. Waters, 35 Md. 531. Identity of parties and issues. — Jones v. Jones, 45 Md. 144. Chap. IV.] THE LAW OF EVIDENCE. 197 Testimony of one deceased given in a former trial is not admis- sible against one not a party to that action or in privity with a party. Tome Institute v. Davis, 87 Md. 591. Opportunity to cross-examine. — Jones v. Jones, 45 Md. 144. Pennsylvania. General authorities. — Arwin v. Bisbing, 1 Yeates, 400; Insurance Co. v. Johnson, 23 Pa. 72; Moore v. Pearson, 6 W. & S. 51; Jones v. Wood, 16 Pa. 25; Wright v. Cumpsty, 41 Pa. 102; Pratt v. Patterson, 81 Pa, 114. Deceased witness. — Hawk v. (Ireensweig, 7 Pa. Law J. 374; Beers v. Cornelius, 1 Pittsb. R. 274; Walbridge v. Knippen, 96 Pa. 4s ; Brown v. Com., 73 Pa. 321; Thornton v. Britton, 144 Pa. 120. Such evidence not admissible if witness is living and within the jurisdiction. Richardson v. Stewart, 2 S. & R. 84; Chess v. Chess, 17 S. & R. 409; Huidekoper v. Cotton, 3 Watts, 56; Lafferty's Es- tate. 1S4 Pa. 502. Witness sick or infirm. — Perrin v. Wells, 155 Pa. 299; Emig v. Diehl, 76 Pa. 359: Rothrock v. Gallagher, 91 Pa. 108; Thornton v. Britton. 144 Pa. 126: WaZ6n'<2<7e v. Knippen, 96 Pa. 48; McClain v. Com., 99 Pa. 86. Deposition admissible when witness is too sick to attend or has lost his memory. Emig v. Diehl, 76 Pa. 359. Absence from jurisdiction. — Ballman v. Heron, 169 Pa. 510; Lohr v. Philipsburgh, 165 Pa. 109. The notes of the testimony of a witness in a former trial of the same cause may be read in evidence if the witness be out of the State. Giberson v. Mills Co., 187 Pa. 513. If the witness is beyond the jurisdiction, his former testimony is admissible. Ma gill v. Kauffman, 4 S. & R. 317; Flanagin v. Leibert, Bright. 61. Identity of parties and issues. — The parties to the former suit must be identical with the parties of the present one. McCully v. Barr, 17 S. & R. 445 ; Norris v. Monen, 3 Watts, 465. The issue must be identical. Harger v. Thomas. 44 Pa. 12S: Sam- ple v. Coulson. 9 W. & S. 62. Testimony of a party to the present action given in a former action between other parties is admissible as an admission. Flrmi- snn v. Coal Co.. 201 Pa. 122. The right to cross-examine in previous trial. — Wright v. Cunzsty, 41 Pa. 102, 111. 198 A DIGEST OF [Part I. Evidence taken in a former proceeding not admissible when the defendant was not represented by counsel and was not told of his right to cross-examine. Com. v. Lenousky, 206 Pa. 277. Preliminary hearings. — Testimony given at the preliminary hearing is admissible, the witness having since died. Brovm v. Coin., 73 Pa. 740. Even though the defendant waived a hearing. Com. v. Keck, 148 Pa. 039. Testimony taken before a coroner is admissible when duly au- thenticated. Edwards v. Gimbel, 202 Pa. 30. How proved. — The former testimony may be proved by the judge's notes, if sworn to. Miles v. O'Hctra, 4 Binn. 108; Foster v. Shaw, 7 S. & Pi. 156; Livingston v. Cox, 8 W. & S. 61. Or by notes of coun- sel. Gould v. Crawford, 2 Pa. 89; Chess v. Chess, 17 S. & R. 409; Rhine v. Robinson, 27 Pa. 30; Railroad Co. v. Spearen, 47 Pa. 300. Or by any witness who heard the testimony and can give its sub- stance. Cornell v. Green, 10 S. & E. 14; Chess v. Chess, 17 S. & R. 409; Wolf v. Wyeth, 11 S. & R. 149; Hepler v. Alt. Carmel Bank, 97 Pa. 420. The entire substance of such former witness' testimony must be given, but not the exact words. Hepler v. Alt. Carmel Bank, 97 Pa. 420. Stenographer's notes are not admissible ; the stenographer must be sworn. Smith v. Hine, 179 Pa. 203. Statutory rule. — Pepper & Lewis' Digest of Laws, " Criminal Pro- cedure," sec. 84; ''Witnesses," sees. 6, 20. When depositions may be read in subsequent causes. Pepper & Lewis' Digest of Laws, " Evidence," sec. 1. Chap. IV.] THE LAW OF EVIDENCE. 199 SECTION II. STATEMENTS IN BOOKS, DOCUMENTS, AND RECORDS, WHEN RELEVANT. Article 33. recitals of public facts in statutes and proclamations. When any act of state or any fact of a public nature is in issue or is or is deemed to be relevant to the issue, any statement of it made in a recital contained in any public Act of Parliament, or in any Royal proclamation or speech of the Sovereign in opening Parliament, or in any address to the Crown of either House of Parliament, is deemed to be a relevant fact. 95 AMERICAN NOTE. General. Authorities. — 9 Am. & Eng. Encyclopaedia of Law, p. 880 et seq.; 3 Taylor on Evidence ( Chamber layne's 9th ed. ), p. 1179 et seq.; Whiton v. Albany, etc., Ins. Co., 109 Mass. 24; Worcester v. North- borough, 140 Mass. 397. Recitals in Federal state papers published by congressional author- ity and in diplomatic correspondence communicated by the President to Congress are within the article. Armstrong v. U. S., 13 Wall. 154; Bryan v. Forsyth, 19 How. 334, 338; Gregg v. Forsyth, 24 How. (U. IS.) 179; Watkins v. Holman, 16 Pet. 25, 55, 56. Recitals in the official precept of the governor are within this article. Com. v. Hall, 9 Gray (Mass.), 262. 9R R. v. Franclclin, 1731, 17 S. T. at p. 636, et seq; R. v. Sutton, 1810. 4 M. &, S. 532. 200 .i DIGEST OF [Part I. The compendium of the tenth census, printed by authority of Con- gress, is admissible to show the population of a town. Fulham v. Howe, GO Vt. 351, 14 Atl. 652. As are also those in official papers prepared in the adjutant- general's office, which are admissible to prove that a certain person was or was not assigned to a particular town as belonging to its- quota of soldiers. Worcester v. Northborough, 140 Mass. 397, 5 N. E. 270. Legislative journals are thus admissible. Root v. King, 7 Cow. 613; People v. Devlin, 33 N. Y. 279, 88 Am. Dec. 377. And so are the return of election inspectors. People v. Merick, 21 N. Y. 539. And municipal records. Denning v. Roome, 6 Wend. 651. Mere official reports are not. Erickson v. Smith, 38 How. Pr. 454 ; Swift v. State, 89 N. Y. 52. Nor are official certificates not pro- vided for by statute. Porter v. Waring, 69 N. Y. 250. New Jersey. A statute may make recitals in a deed issued by a public officer admissible to prove the proceedings under which the deed was issued. Woodbridge v. Allen, 43 N. J. L. 262. Pennsylvania. If an act of the Legislature rendering a bastard legitimate recites the child's parentage, such recital is prima facie evidence of the fact. McOunnigle v. McKee, 11 Pa. 81. Article 34. relevancy of entry in. public record made in performance of duty. An entry in any record, official book, or register kept in any of Her Majesty's dominions or at sea, or in any foreign country, stating, for the purpose of being referred to by the public, a fact in issue or relevant or deemed to be relevant thereto, and made in proper time by any person in the dis- charge of any duty imposed upon him by the law of the Chap. IV.] THE LAW OF EVIDENCE. 201 place in which such record, book, or register is kept, is itself deemed to be relevant fact. 96 AMERICAN NOTE. General. Authorities. — 3 Taylor on Evidence (American edition of 1897), p. 117940 et seq.; McKelvey on Evidence, p. 276; 9 Am. & Eng. En- cyclopedia of Law (2d ed.), p. 882 et seq.; Gurney v. Howe, 9 Gray (Mass.), 404, 69 Am. Dec. 229; Pells v. Webquish, 129 Mass. 469; Hunt v. Chosen Order of Friends, 64 Mich. 671, 8 Am. St. Rep. 855 (church records) ; Sandy White v. U. S., 164 U. S. 100; Succession of Justus, 48 La. Ann. 1096; Bell v. Kendrick, 25 Fla. 778; Chicago R. R. Co. v. Trayes, 17 111. App. 136 (weather records) ; St. Clair v. U. S., 154 U. S. 134 (ship register) ; Evanston v. Gunn, 99 U. S. 660, 666. Only such statements as are contained in such documents as may be made in the regular course of duty are included. Erwin v. English, 61 Conn. 502; Rindge v. Walker, 61 N. H. C8; U. S. v. Convin, 129 U. S. 381. Instances. — The record of baptism is admissible when made by a deceased minister. Huntley v. Compstock, 2 Root (Conn.), 100. So is a certified copy of the inventory of an insolvent estate. Field- ing v. Silverstein, 70 Conn. 605. The record of registered letters, at a post-office, is evidence, and need not be authenticated by the clerk. Gurney v. Howe, 9 Gray (Mass.), 404. MSturla v. Freccia, 1880, 5 App. Ca. 623; see especially, pp. 633-4, and 643-5; Lyell v. Kennedy, 1889, 14 App. Ca. 437; Taylor, ss. 1591-1595. See also Queen's Proctor v. Fry, 1879, 4 P. D. 230. In Robinson v. The Duke of Buccleuch and Queensbury, 1887, 3 Times L. R. 472, the Court of Appeal held in a pedigree case that neither a baptism nor a burial certificate was evidence of the age of the person to whom they related. This had been previously doubted: see /// re Turner; Glenister v. Harding, 1885, 29 Ch. Div. at pp. 990. 991; Morris v. Davies, 1825, 3 C. & P. 215; and Cope v. Cope, 1833. 1 Moo. & Rob. 269. See note to Article 31, ante, p. 185, note 81. 202 A DIGEST OF [Part I. Tax assessors' books are admissible in suits involving the issue of adverse possession. Elwell v. Hinckley, 138 Mass. 225. And to show in whose name the property was assessed when the question arose on other issues. Edson v. Munsell, 10 Allen (Mass.), 557. A town clerk's record, kept in accordance with statute, is com- petent but not exclusive evidence as to the soldiers who comprised the town's quota. Wayland v. Ware, 104 Mass. 46; Hanson v. South Scituate, 115 Mass. 336. The date of the trial of a case in the lower court may be shown on appeal by the record of the lower court. The record being in the same case need not be formally put in evidence. Corn. v. Lane, 151 Mass. 356. The fact that testimony within this article is admitted does not exclude contradictory parol evidence. Com. v. Waterman, 122 Mass. 43. A certificate of marriage is often treated as an original document and not as a copy. Northrop v. Knowles, 52 Conn. 525, 526 ; Erwin v. English, 61 Conn. 507; State v. Schweitzer, 57 Conn. 537. As to entries in corporation books, see Howard v. Hayward, 10 Mete. (Mass.) 408; Ten Eyck v. R. R. Co., 74 Mich. 226; R. R. Co. v. Cunnington, 34 O. St. 327 ; Chase v. Sycamore, etc., R. Co., 38 111. 315. The stock-books are evidence, though not conclusive, as to who are the stockholders. Turnbull v. Payson, 95 U. S. 418; Vanderwerken v. Glenn, 85 Va. 9; Lehman v. Glenn, 87 Ala. 618. Registers of births, marriages, and burials are evidence to prove pedigree. Bogert v. King, 5 Cow. 237; Miner v. Boneham, 15 Johns. 226; Maxwell v. Chapman, 8 Barb. 579; Porter v. Ruckman, 6 Tr. App. 65 (engrossed minutes of a clerk) ; Svhile v. Brokhahus, 80 N. Y. 614 (signal service records) ; Matter of Silvernail, 45 Hun, 575 (county treasurer's books) ; Supervisors of Monroe v. Clarke, 25 Hun, 282 (county treasurer's books). The report or certificate of an officer is evidence only of facts which, by law, he is required or authorized to certify. Water Com- missioners v. Lansing, 45 N. Y. 19; Anderson v. James, 4 Rob. 35; affirmed by the Court of Appeals. See 6 Alb. L. J. 166. It may be evidence in favor of the officer himself. McKnight v. Lewis, 5 Barb. 681; Bissell v. Hamblin. 6 Duer, 512; Glover v. Whit- Chap. IV.] THE LAW OF EVIDENCE. 203 tenhall, 2 Den. G33 (sheriff's return) ; Cornell v. Cook, 7 Cow. 310 (a constable's indorsement of a levy on his execution). The charter of the city of New York may be read from a volume printed by authority of the common council. Howell v. Ruggles, 5 X. Y. 444. A report of a railway company to the board of railway commis- sioners is inadmissible by itself. Bella v. A*. Y., L. cC- W. Ry. Co., 6 X. Y. Supp. 552. Governor's proclamation. — The State register is admissible in evi- dence to prove the Governor's proclamation. Lurton v. Gilliam, 1 Scam. 577. Legislative journal. — Journal entries of the house of legislature are admissible. Miller v. Goodwin, 70 111. 659; People v. Barnes, 35 111. 121. Legislative journals of Illinois prove themselves. Grob v. Cush- ion, 45 111. 119. The presentation of a bill may be shown by the journal of the legislature. People v. Hatch, 33 111. 9. Ordinances. — Ordinances may be read in evidence from the original record. Grob v. Cushman, 45 111. 119. In order to render city ordinances admissible the authority to pass them must be shown. Bethalto v. Conley, 9 Brad. 339; Alton v. Hartford Fire Ins. Co., 72 111. 328: Byars v. Mt. Vernon, 77 111. 467; Schott v. People, 89 111. 195; L., N. A. & C. R. R. Co. v. Shires, 10S 111. 617. Published laws. — Published laws, certified by the Secretary of State, are admissible. Illinois Cent. R. R. Co. v. Wren, 43 111. 77; Bcdard v. Hall, 44 111. 91. The printed statute books of other States, issued under authority of the State, are admissible. Hurd's Rev. Stat., chap. 51, sec. 10, p. 860; Heuthorn v. Doe, 1 Blackf. 157. Law reports. — Law reports may be read in evidence. Hurd's Rev. Stat., chap. 51, sec. 12, p. 860. Official reports and accounts. — The reports and accounts of officers are often admissible. Ohning v. City, 66 Ind. 59; State v. Grammer, 29 Ind. 530; State v. Prather, 44 Ind. 287: Osborne v. State ex rel., 128 Ind. 129; Goodwine v. State, 81 Ind. 109; Hunt v. State, 93 Ind. 311: City v. Dykeman, 116 Ind. 15. Assessment lists. — A copy of a tax duplicate is admissible. Stand- ard Co. v. Bretz, 98 Ind. 231. 204 A DIGEST OF [Part I. Assessment lists are not competent to prove value. McAfee v. Montgomery, 21 Ind. App. 196; Railroad Co. v. McDougal, 108 Ind. 179. Adjutant-general's records. — Certified copies of the adjutant-gen- eral's records are admissible. Board v. May, G7 Ind: 562. Statutes of other States. — The printed statutes of other States, published by authority, are admissible. Crake v. Crake, 18 Ind. 156; Comparet v. Jernegan, 5 Blackf. 375; Paine v. Railroad Co., 31 Ind. 283; Rothrock v. Perkinson, 61 Ind. 39; Vaughn v. Griffith, 16 Ind. 353. But not unless printed under authority. Magee v. Saun- derson, 10 Ind. 261. Ordinance. — The fire limits of a city may be proved by an ordi- nance. Miller v. Valparaiso, 10 Ind. App. 22. Land records. — Land records may be admitted without the oriStauffcr, 192 Pa. 398. Printed copies. — Printed copies of Philadelphia ordinances as evi- dence. Pepper & Lewis' Digest of Laws, " Evidence," sec. 37. Chap. IV.] THE LAW OF EVIDENCE. 217 History. — Works of history admissible to prove remote transac- tions. Com. v. Alburger, 1 Whart. 469. Sustaining text so far as works by authors, long deceased, are concerned. Spalding v. Hedges, 2 Pa. 240, 243. The articles of agreement between Penn and Baltimore as to State boundary are admissible. Ross v. Cutshall, 1 Binn. 399. The " list of first purchasers " is admissible in Pennsylvania. Hurst v. Dippo, 1 Dall. 20; Morris v. Vanderen, 1 Dall. 64. So also is a certified copy. Kingston v. Lesley, 10 S. & R. 383. The journal of the U. S. House of Representatives with a letter of the Secretary of War and a report of an engineer received in evidence to prove a fact. Miles v. Stevens, 3 Pa. 21. Article 36. entries in bankers' books. A copy of any entry in a banker's book must in all legal proceedings be received as prima facie evidence of such entry, and of the matters, transactions, and accounts therein recorded [even in favour of a party to a cause producing a copy of an entry in the book of his own bank] .* Such copies may be given in evidence only on the con- dition stated in Article 71 (/). The expression " Bankers' books " includes ledgers, day- books, cash-books, account-books, and all other books used in the ordinary business of the bank. 2 The word " Bank " is restricted to banks which have duly made a return to the Commissioners of Inland Revenue, i Harding v. Williams, 1880, 14 Ch. Div. 197. 2 And applies apparently to the books of bankers in all parts of the United Kingdom: Kissam v. Link, post. 218 A DIGEST OF [Part I. Savings banks certified under the Act relating to savings banks, Post-office savings banks, and any company carrying on the business of bankers to which the Companies Acts, 1862 to 1880, are applicable, which has furnished to the registrar of joint-stock com- panies a list and summary, as required by the second part of the Companies Act, 1862, with the addition of a state- ment of the names of the several places where it carries on business. 3 The fact that any bank has duly made a return to the Commissioners of Inland Revenue may be proved in any legal proceeding by the production of a copy of its return verified by the affidavit of a partner or officer of the bank, or by the production of a copy of a newspaper purporting to contain a copy of such return published by the Commission- ers of Inland Revenue. The fact that a company carrying on the business of bankers has duly furnished a list and summary [semble with the addition specified] may be proved by the certificate of the registrar or any assistant registrar. 4 The fact that any such savings bank is certified under the Act relating to savings banks may be proved by an office or examined copy of its certificate. The fact that any such bank is a post-office savings bank may be proved by a certificate purporting to be under the hand of Her Majesty's Postmaster-General or one of the secretaries of the Post Office. 5 3 45 & 46 Vict. c. 72, a. 11. 4 45 & 46 Vict. c. 72, s. 11. 3 42 & 43 Vict. c. 11. Chap. IV.] THE LAW OF EVIDENCE. 219 Article 37. bankers not compellable to produce their books. A bank or officer of a bank is not in any legal proceeding to which the bank is not a party compellable to produce any banker's book, or to appear as a witness to prove the matters, transactions, and accounts therein recorded unless by order of a Judge of the High Court made for special cause [or by a County Court Judge in respect of actions in his own court]. 6 Article 38. judge's powers as to banker's books. On the application of any party to a legal proceeding a Court or Judge [including a County Court Judge acting in respect to an action in his own court] may order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the purposes of such pro- ceedings. Such order may be made either with or without summoning the bank, or any other party, and must be served on the bank three clear days [exclusive of Sundays and Bank holidays] before it is to be obeyed, unless the Court otherwise directs. 7 6 42 & 43 Vict. c. 11, ss. 7, 10. 7 42 & 43 Vict. c. 11, s. 7. See Davies v. White, 1884, 53 L. J., Q. B. 275; In re Marshfield, Marshfield v. Hutchings, 1886, 32 Ch. D. 499; Arnott v. Hayes, 1887, 36 Ch. D. 731. The order may be made in re- spect of books in any part of the United Kingdom; Kissam v. Link, [1896], 1 Q. B. 574. See post, Article 71 (6). 220 A DIGEST OF [Pabt I. Article 39.* " judgment." The word " judgment " in Articles 40-47 means any final judgment, order or decree of any Court. The provisions of Articles 40-45 inclusive, are all subject to the provisions of Article 46. Article 40. all judgments conclusive proof of their legal EFFECT. All judgments whatever are conclusive proof as against all persons of the existence of that state of things which they actually effect when the existence of the state of things so effected is a fact in issue or is or is deemed to be relevant to the issue. The existence of the judgment effecting it may be proved in the manner prescribed in Part II. Illustrations. (a) The question is, whether A has been damaged by the negligence of his servant B in injuring C's horse. A judgment in an action, in which C recovered damages against A, is conclusive proof as against B, that C did recover damages against A in that action.8 (b) The question is, whether A, a shipowner, is entitled to recover as for a loss by capture against B, an underwriter. * See Note XXIII. 8 Green v. New River Company, 1792, 4 T. R. 589. (See Article 44, Illustration (a).) Chap. IV.] THE LAW OF EVIDENCE. 221 A judgment of a competent French prize court condemning the ship and cargo as prize, is conclusive proof that the ship and cargo were lost to A by capture.^ (c) The question is, whether A can recover damages from B for a malicious prosecution. The judgment of a Court by which A was acquitted is conclusive proof that A was acquitted by that Court.io (d) A, as executor to B, sues C for a debt due from C to B. The grant of probate to A is conclusive proof as against C, that A is B's executor. 11 (e) A is deprived of his living by the sentence of an ecclesiastical court. The sentence is conclusive proof of the act of deprivation in all cases. 12 (f) A and B are divorced a vinculo matrimonii by a sentence of the Divorce Court. The sentence is conclusive proof of the divorce in all cases.13 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 527, 538, 539; Underhill on Evidence, sec. 157; Spencer v. Dearth, 43 Vt. 98, 105; Harrington v. Wadsioorth, 63 N. H. 400: King v. Chase, 15 N. H. 9, 41 Am. Dec. 675; Chamberlain v. Carlisle, 26 N. H. 540; Burlen v. Shannon, 3 Gray (Mass.), 387, 389: Day v. Floyd, 130 Mass. 488; Emery v. Hildreth, 2 Gray (Mass.), 228; Aron v. Chaff e, 72 Miss. 159; Dorrell v. State, 83 Ind. 357; Key v. Dent, 14 Md. 86, 98: Emus v. Smith, 14 How. (U. S.) 400, 430; Faulcon v. Johnson, 102 X. C. 264, 11 Am. St. Rep. 737. 9 Involved in Geyer v. Aguilar, 1798. 7 T. R. 681. WLeggatt v. Tollervey, 1811, 14 East, 302; and see Caddy v. Barlow, 1827, 1 Man. & Ry. 277. 11 Allen v. Dundas, 1789, 37 R. 125. In this case the will to which probate had been obtained was forged. 12 Judgment of Lord Holt in Philips v. Bury, 1788, 2 T. R. 346, 351. 13 Assumed in Needham v. Bremner, 1866, L. R. 1 C. P. 583. A DIGEST OF U'akt I. The record of judgment is not admissible for any purpose against a person not a party or privy to it, except to prove the fact that such a judgment was rendered. Smith v. Chapin, 31 Conn. 532; Trubee v. Wheeler, 53 Conn. 461. See, also, Cowles v. Harts, i Conn. 552; Union Mfg. Co. v. Pitkin, 14 Conn. 183. The grant of probate is conclusive proof of executorship as to all persons. Steen v. Bennett, 24 Vt. 303; Mutual Ins. Co. v. Tisdale, 91 U. S. 238, 243; Quidort v. I'ergeaux, 18 N. J. Eq. 472. A decree granting administration upon the estate of a living per- son is void for want of jurisdiction. Jochumsen v. Suffolk Sav. Bank, 3 Allen (Mass.), 89; Lavin v. Emigrant Sav. Bank, 18 Blatchf. 1, 36; Stevenson v. Super Ct., 62 Cal. 60; Thomas v. People, 107 111. 517; Devlin v. Com., 101 Pa. 273; Springer v. Shavender, 118 N. C. 33. A decree appointing a trustee is conclusive proof of the existence of the trust relation. Bassett v. Crafts, 129 Mass. 513. A decree appointing a guardian is conclusive proof of the exist- ence of the guardianship. Farrar v. Olmstead, 24 Vt. 123. A decree of admission to citizenship is conclusive proof of citizen- ship. State v. MacDonald, 24 Minn. 48; Mut. Ins. Co. v. Tisdale, 91 U. S. 238, 245; People v. McGowan, 77 111. 644. A valid decree of divorce is conclusive upon the world. Adams v. Adams, 154 Mass. 290: In re Eickhoff, 101 Cal. 600. The grant of probate is conclusive proof of executorship to all per- sons. Kelly v. West, 80 N. Y. 139; N. Y. Code Civ. Pro., sec. 2591. So the appointment as a receiver, of the receivership. Whittlesey v. Frantz, 74 N. Y. 456. A valid decree of divorce is conclusive upon the world. Hunt v. Hunt, 72 N. Y. 217. As to impeaching a decree of divorce for want of jurisdiction, see People v. Baker, 76 M. Y. 78. By statute, a decree by a surrogate, determining the fact of death of a person supposed to be dead is deemed conclusive, for the pur- pose of rendering the acts of the administrator valid until his au- thority is revoked. Roderigas v. East River Sav. Inst., 63 N. Y. 460. But the clerk of the surrogate does not have this power. Roderigas v. East Rioer Sav. Inst., 76 N. Y. 316. See Bolton v. Schriever, 135 N. Y. 65. Ciiap. IV.] THE LAW OF EVIDENCE. 223 A decree of divorce is conclusive evidence that the cause for which it was granted existed. Clarke v. Lott, 11 111. 105. A decree of admission to citizenship is conclusive proof of citizen ship. People v. McGowan, 11 111. 644. A decree granting administration upon the estate of a living per- son is void for want of jurisdiction. Thomas v. People, 107 111. 517. Judgment conclusive proof of legal effect. — Grant Township v. Reno Tcicnship, 107 Mich. 409, 114 Mich. 41; Rouse, etc., Co. v Detroit Cycle Co., Ill Mich. 251. The basis of a judgment cannot be proved by the briefs. Greenlee v. Lowing, 35 Mich. 63. A criminal record is not admissible in a subsequent civil case English v. Caldwell, 30 Mich. 362. Judgments are admissible when they concern the same subject- matter and are rendered in proceedings between the same parties. Phillips v. Jamieson, 51 Mich. 153. New Jersey. Status as executor or administrator. — The granting of letters of administration by the Probate Court is conclusive as to one's status as administrator. Plume v. Savings Inst., 46 N. J. L. 211. The grant of probate is conclusive proof of executorship as to all persons. Quidort v. Pergeaux, 18 N. J. Eq. 472. Personal status. — A judgment as to personal status is conclusive. McClurg v. Terry, 21 N. J. Eq. 225. Guardianship. — Letter of guardianship is conclusive. Vandervere v. Gaston, 25 N. J. L. 623. Probate of a will. — Decree of the Orphans' Court on question of probate is no evidence as to the validity of the will in an action of ejectment. Den. v. Ayres, 13 N. J. L. 153. Maryland. Authorities. — Dorrell v. State, 83 Md. 357. A decree in chancery equally with a judgment at law is admis sible even as against strangers to show rem ipsam. Key v. Dent, 14 Md. 86. A decree appointing plaintiff as receiver is admissible to show his authority to sue as such. Frank v. Morrison, 58 Md. 423. A decree in equity is admissible to prove the fact of its entry and its legal consequences, even as against strangers to it. Parr v. State, 224 A DIGEST OF [Part I. 71 Md. 220; Key v. Dent, 14 Md. 86; Dorset/ v. Gassaway, 2 H. & J. 402. A decree of a court of equity that property shall be deemed the separate estate of a wife is admissible in an attachment of such property for the debt of the husband. Smith v. McAtee, 27 Md. 420. The refusal of probate to a will bars the devisee from thereafter proceeding in ejectment on the will. Johns v. Hodges, 62 Md. 525. Pennsylvania. Authorities. — Masser v. Strickland, 17 S. & R. 354. The record of the conviction of the criminal is admissible in an action for the reward offered for hirm York v. Forscht, 23 Pa. 391. A decree establishing the status of an ousted stockholder of a corporation to be that of a creditor is conclusive. Reading Iron Works Estate, 149 Pa. 182. A report of the county auditor passing the sheriff's bill for fees against the county is in effect a judgment and concludes the sheriff from thereafter asking a larger amount. Northampton Co. v. Her- man, 119 Pa. 373. Probate of a will conclusive if not contested within five years. Cochran v. Young, 104 Pa. 333. A decree granting administration upon the estate of a living per- son is void for want of jurisdiction. Devlin v. Com., 101 Pa. 273. Article 41. judgments conclusive as between parties and privies of facts forming ground of judgment. Every judgment is conclusive proof as against parties and privies of facts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved. 14 14 R. v. Hutchins, 1880, 5 Q. B. D. 353, supplies a good illustration of this principle. Chap. IV.] THE LAW OF EVIDENCE. 225 Illustrations. (a) The question is, whether C, a pauper, is settled in parish A or parish B. D is the mother and E the father of C. D, E, and several of their children were removed from A to B before the question as to C's settle- ment arose, by an order unappealed against, which order described D as the wife of E. The statement in the order that D was the wife of E is conclusive as between A and B. 15 ( b ) A and B each claim administration to the goods of C, deceased. Administration is granted to B, the judgment declaring that, as far as appears by the evidence, B has proved himself next of kin. Afterwards there is a suit between A and B for the distribution of the effects of C. The declaration in the first suit is in the second suit ■conclusive proof as against A that B is nearer of kin to C than A.16 (c) A company sues A for unpaid premium and calls. A special case being stated in the Court of Common Pleas, A obtains judgment on the ground that he never was a shareholder. The company being wound up in the Court of Chancery, A applies for the repayment of the sum he had paid for premium and calls. The decision that he never was a shareholder is conclusive as between him and the company that he never was a shareholder, and he is therefore entitled to recover the sums he paid.17 (d) A obtains a decree of judicial separation from her husband B, on the ground of cruelty and desertion, proved by her own evidence. Afterwards B sues A for dissolution of marriage on the ground of adultery, in which suit neither B nor A can give evidence. A charges B with cruelty and desertion. The decree in the first suit is deemed to be irrelevant in the second. 18 is R. v. Hartington Middle Quarter, 1855, 4 E. & B. 780; and see Flitters v. Allfrey, 1S74, L. R. 10 C. P. 29; and contrast Dover v. Child, 1876; 1 Ex. Div. 172. WBarrs v. Jackson, 1845, 1 Phill. 582, 587, 588. IT Bank of Hindustan, &c., Alison's Case, 1873, L. R. 9 Ch. App. 24. 18 Stoate v. Stoate, 1861, 2 Swa. & Tri. 223. Both would now be ■competent witnesses in each suit. 15 220 A DIGEST OF [Pabt I. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (loth ed.), sec. 524 et seq.; Thayer's Preliminary Treatise on Evidence, p. 398 et seq.; Sanderson v. Peabody, 58 N. H. 116; Quinn v. Quinn, 16 Vt. 426; Woodruff v. Woodruff, 1 1 Me. 475 ; Bradley v. Bradley, 1 1 Me. 367 ; Kendall v. School District, 75 Me. 358; Beloit v. Morgan, 7 Wall. 619, 622; Marsteller v. Marsteller, 137 Pa. St. 517; Orthwein v. Thomas, 127 111. 554; Fenunck Hall Co. v. Old Saybrook, 69 Conn. 40; Bethle- hem v. Watertown, 47 Conn. 237; Burritt v. fteZfv, 47 Conn. 323; Burlen v. Shannon, 3 Gray (Mass.), 387; McCaffrey v. Carter, 125 Mass. 330; TWiiS'fa£e v. Schweitzer, 57 Conn. 537, 538; Bammick v. Bronson, 5 Day (Conn.), 293; Means v. Welles, 12 Mete. (Mass.) 356; Aewburyport v. Boothbay, 9 Mass. 414; Com. V. floZf, 121 Mass. 61; Coot. v. Barley, 14 Gray (Mass.), 411. Marriage cannot be proven by reputation in criminal prosecutions for bigamy, incest, adultery, unlawful cohabitation or criminal con- versation. State v. Bodgskins, 19 Me. 155; Green v. State, 21 Fla. 403; Butchins v. Kimmell, 31 Mich. 126; Biler v. People, 156 111. 577; Com. v. Littlejohn, 15 Mass. 163; Com. v. Norcross, 9 Mass. 492; Stofe v. Roswell, 6 Conn. 446; Bammick v. Bronson, 5 Day (Conn.), 293. But aliter in prosecution for nonsupport. State v. Schweitzer, 57 Conn. 537, 538. Evidence that the relation between a man and a woman is re- puted to be adulterous is not admissible against proof of a formal marriage. Northrop v. Knowles, 52 Conn. 523. Any one (not simply a member of the family), is a competent witness to prove repute. Knower v. Wesson, 13 Mete. (Mass.) 143. When marriage is in issue on a writ of right, it may be shown by cohabitation and repute. Mears v. Welles, 12 Mete. (Mass.) 356. The repute may be in another country. Com. v. Johnson, 10 Allen (Mass.), 196. The presumption of marriage from evidence of cohabitation and repute is rebuttable. Clayton v. Wardell, 4 N. Y. 230. Marriage cannot be proven by reputation in criminal prosecutions for bigamy, incest, adultery, unlawful cohabitation, or criminal con- versation. Eayes v. People, 25 N. Y. 390. But as to evidence of reputation in divorce suits, see Collins v. Collins, 80 N. Y. 10. As to proof of marriage by admissions in both civil and criminal cases, see Eisenlord v. Clum, 126 N. Y. 552, 562. Marriage may be shown by proof of living together as husband and. wife for a series of years, always recognizing each other as such, and being so treated and reputed in the community. The court or jury trying the case will judge of the sufficiency of the evidence. Bruner v. Briggs, 33 Ohio St. 478. Chap. V.] THE LAW OF EVIDENCE. 297 Or by reputation that they lived together as husband and wife. Stewart v. Welch, 41 Ohio St. 483, 497. Where a man and woman live together as husband and wife his admissions are competent evidence to prove marriage. Wolverton v. State, 16 Ohio, 173; Stanglein v. State, 17 Ohio St. 453. Marriage may be shown by reputation. Miller v. White, 80 111. 580; Lowry v. Coster, 91 111. 582. Marriage may be inferred from the conduct of the parties. Port v. Port, 70 111. 484. Marriage may be presumed from cohabitation and repute. Cart- right v. M'Goican, 121 111. 388, 395. Marriage is not established by proof of cohabitation alone. Wyatt v. Wyatt, 44 111. 473. Compare Miller v. White, 80 111. 580; Hiler v. People, 156 111. 511. Bigamy — Criminal conversation.— In bigamy prosecution and prose- cution for criminal conversation, actual marriage must be proved. Miller v. White, 80 111. 580. Marriage cannot be proven by reputation in criminal prosecutions for bigamy, incest, adultery, unlawful cohabitation, or criminal con- versation. Hiler v. People, 156 111. 511. The marriage license is admissible upon a bigamy trial. King v. Dale, 1 Scam. 513; Jackson v. People, 2 Scam. 231. Opinion as to marriage — First paragraph of the text. — Peet v. Peet, 52 Mich. 464. Reputation is admissible as tending to establish a marriage. Peet v. Peet, 52 Mich. 464; Proctor v. Bigelow, 38 Mich. 282; Perry v. Love joy, 49 Mich. 529; Leonard v. Pope, 27 Mich. 145. A marriage is shown prima facie by proof of a present agreement followed by cohabitation. Hutchins v. Kimmell, 31 Mich. 126; Webster v. Webster, 96 U. S. 76 (Mich, case) ; Peet v. Peet, 52 Mich. 464. Marriage cannot be proven by reputation in criminal prosecutions for bigamy, incest, adultery, unlawful cohabitation, or criminal con- versation. Hutchins v. Kimmell, 31 Mich. 126. New Jersey. First paragraph of the text. — Wallace's Case, 49 N. J. Eq. 530. Marriage may be established by proof of open cohabitation and repute. Costill v. Hill, 55 N. J. Eq. 679. ■298 A DIGEST OF [Pabt I. The presumption of marriage arising from repute and cohabita- tion is rebuttable. Collins v. Voorhees, 47 N. J, £q. 555. Maryland. Authority. — Crockett v. Davis, 81 Md. 134. Marriage may be proved by general reputation, cohabitation, and acknowledgment, except in cases for criminal conversation and for bigamy. Jackson v. Jackson, 80 Md. 176. A witness cannot be asked whether in his opinion certain persona were married or not. Jackson v. Jackson, 80 Md. 176. A religious ceremony will be presumed on proof of general repu- tation, cohabitation, and acknowledgment. Richardson v. Smith, 80 Md. 89. Pennsylvania. Authorities. — Greenwalt v. McEnelley, 85 Pa. 352. The presumption of marriage arises from proof of cohabitation and repute, but is rebuttable. Senser v. Bower, 1 P. & W. 450; Grimm's Estate, 131 Pa. 199. To establish the fact that deceased was claimant's wife the fol- lowing evidence was admitted: An official certificate of the birth of a child naming the parties as husband and wife ; Checks indorsed by deceased in her married name; A letter addressed to deceased as a married woman; A life insurance policy describing deceased as "his wife;" A deed to deceased in her married name; Repute in the neighborhood; The fact that children by a former wife treated deceased as their mother. Strauss' Estate, 168 Pa. 561. Reputation in the family is admissible to prove marriage. Pick- ens' Estate, 163 Pa. 14. Marriage record. — Certified copy of the record made prima facie evidence. Pepper & Lewis' Digest of Laws. " Marriage," sec. 14. Article 54. grounds of opinion, when deemed to be relevant. Whenever the opinion of any living person is deemed to be relevant, the grounds on which such opinion is based are also deemed to be relevant. Chap. V.] THE LAW OF EVIDENCE. 299 Illustration. An expert may give an account of experiments performed by him for the purpose of forming his opinion. AMERICAN NOTE. General. Authorities. — Lawson on Expert and Opinion Evidence (2d ed.), p. 209 et seq.; 12 Am. & Eng. Encyclopaedia of Law (2d ed. ), p. 489; Woodman v. Dana, 52 Me. 9; Steam Mill Co. v. Water Power Co., 78 Me. 274; Sexton v. North Bridgeicater, 116 Mass. 200; Leslie v. Gran- ite R. R. Co., 172 Mass. 468, 52 N. E. 542; Hawkins v. Fall River, 119 Mass. 94; Dickerson v. Fitchburg, 13 Gray (Mass.), 555; Keith v. Lathrop, 10 Cush. (Mass.) 457; Demerritt v. Randall, 116 Mass. 331 ; Emerson v. Lowell Gas Co., 6 Allen (Mass.), 146. This is true in case of experts. Hawkins v. Fall River, 119 Mass. 94; Eidt v. Cutler, 127 Mass. 522. An expert may give an account of experiments performed by him for the purpose of forming his opinion. Eidt v. Cutler, 127 Mass. 522; Sullivan v. Com., 3 Pa. St. 284; Moore v. State, 96 Tenn. 209; Lindsay v. People, 63 N. Y. 143, 156; People v. Morrigan, 29 Mich. 5. And these experiments may be performed before the jury. Leonard v. So. Pac. Co., 21 Ore. 555; McKay v. Lasher, 121 N. Y. 477; Penn. Coal Co. v. Kelly, 156 111. 9. But such evidence is inadmissible, if the experiments do not take place under conditions similar to those in the case before the court. Com. v. Piper, 120 Mass. 105; People v. Slack, 90 Mich. 448; State v. Fletcher, 24 Ore. 295. Compare People v. Conkling, 111 Cal. 616. An expert may perform experiments before the jury in explana- tion of his testimony. McKay v. Lasher, 121 N. Y. 477. An expert may state the grounds of his opinion. Koons v. State, 36 Ohio St. 195. Where a portion of the experts only state the facts upon which they base their opinions, the court need not charge that the facts are entitled to greater weight than the opinions. Breck v. State, 4 Ohio Circ. Ct. 160, 180. Stating results of experiments. — A witness may state the results of experiments made under like conditions. Smith v. State, 2 Ohio St. 511. 300 A DIGEST OF [Pabt I. Exhibiting article to jury. — In an action to recover damages re- ceived by a bicycle, a witness having testified that all bicycles are made on practically the same principle, it was not error to allow such witness to exhibit his bicycle to the jury in connection with his testimony. Taylor v. McGrath, 9 Ind. App. 30, 33. New Jersey. Authorities. — Declarations to a physician as to symptoms are admissible as part of the basis of his opinion. State v. Gedicke, 43 N. J. L. 86. When an expert quotes books of science as the basis of his opin- ion they may be admitted to contradict him. N. J. Zinc Co. v. Lehigh Zinc Co., 59 N. J. L. 189. Opinion evidence should be given in connection with evidence of the facts. Sloan v. Maxwell, 3 N. J. Eq. 563. Pennsylvania. Authorities. — Brown v. Corey, 43 Pa. 495. A nonexpert witness must give the facts upon which his opinion is founded, so far as is possible. Ex parte Springer, 4 Clark, 188; Austin v. Austin, 4 Pa. Co. Ct. 368. A witness who has given his opinion as to the aggregate value of property may give also the list of items from which he made up his opinion. King v. Faoer, 51 Pa. 387. And see Selover v. Rex- ford, 52 Pa. 308. Reasons upon which a medical expert's opinion is founded. Ex parte Springer, 4 Clark. 188. An expert may give an account of experiments performed by him for the purpose of forming his opinion. Sullivan v. Com., 3 Pa. 284. A diagram drawn by a handwriting expert to illustrate his mean- ing is not evidence, but may be used by him and by counsel in argu- ment to present the theory upon which the witness' opinion is based. Eagart v. Carr, 198 Pa. 606. Chap. VI.] THE LAW OF EVIDENCE. 301 CHAPTER VI.* CHARACTER, WHEN DEEMED TO BE RELEVANT AND WHEN NOT. Aeticle 55. character generally irrelevant. The fact that a person is of a particular character is deemed to be irrelevant to any inquiry respecting his conduct, except in the cases mentioned in this chapter. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (loth ed. ), sees. 54, 55; 5 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 850; Dunham v. Rackliffe, 71 Me. 345; Thayer v. Boyle, 30 Me. 475; Dame v. Kenney, 25 N. H. 318; Boardman v. Woodman, 4~i N. H. 120; Lander v. Beaver, 32 Vt. 114, 124, 76 Am. Dec. 156; Hampson v. Taylor, 15 R. I. 83, 8 Atl. 331; Wright v. McKee, 37 Vt. 161; Chase v. Maine Central R. R. Co., 77 Me. 62 ; Porter v. Seiler, 23 Pa. St. 424, 430, 62 Am. Dec. 341 ; Simpson v. Westernberger, 28 Kan. 756, 42 Am. Rep. 195, n.; Fahey v. Crotty, 63 Mich. 383, 6 Am. St. Rep. 305; O'Bryan v. O'Bryan, 13 Mo. 16, 53 Am. Dec. 128; Lamagdelaine v. Trombly, 162 Mass. 339, 39 N. E. 38; Boynton v. Kellogg, 3 Mass. 189: Aticood v. Dearborn, 1 Allen (Mass.), 4S3, 79 Am. Dec. 755; Day v. Rose, 154 Mass. 13; Heytvood v. Reed, 4 Gray (Mass.), 574; McDonald v. Savoy, 110 Mass. 49; Com. v. Worcester, 3 Pick. (Mass.) 462; McCarty v. Leary, 118 Mass. 509; Clement v. Kimball, 98 Mass. 535; Leonard v. Allen, 11 Cush. (Mass.) 241; Tenney v. Tuttle, 1 Allen (Mass.), 185. In civil proceedings, unless the character of the party be directly put in issue by the proceeding itself, evidence of his general char- * See note XXV. 302 A DIGEST OF [Part I. acter is not admissible. Humphrey v. Humphrey, 7 Conn. 118; Bennett v. Hyde, 6 Conn. 26; Vawter v. Hultz, 112 Mo. 633; Am. Ins. Co. v. Hazen, 110 Pa. St. 530; Elliott v. Russell, 92 Ind. 526; ffoUz- »«a» v. Hoy, 118 111. 534; Leinkauf v. Brinker, 62 Miss. 255; TFiWtaw* v. Edmunds, 75 Mich. 92; JJaH v. Rankin, 87 la. 261. In actions for seduction and the like the woman's bad character as to chastity may be shown. Sanborn v. Neilson, 4 X. H. 501; Mitchell v. Work, 13 R. I. 645; Van Storch v. Gri#m, 71 Pa. St. 240; White v. Murtland, 71 111. 250. In malicious prosecution, the plaintiff's bad character is admis- sible on the issue of probable cause. Mclntyre v. Levering, 148 Mass. 546; 11 'oodicorth v. Mills, 61 Wis. 44. Compare Am. Express Co. v. Patterson, 73 Ind. 430. The character of a witness for veracity may always be attacked and defended. Fay v. Harlan, 128 Mass. 244; Com. v. Stevenson, 127 Mass. 446; Gertz v. Fitchburg R. R. Co., 137 Mass. 77. To show that a book account, produced in an action of book debt, is not entitled to credit, evidence is not admissible that the party who made the charges and with whom the business relating to the account was transacted is generally reputed to keep inaccurate, false and fraudulent accounts; and that the books produced are generally reputed to be of that character. Roberts v. Ellsworth, 11 Conn. 292. That the character for honesty of the parties to a conveyance is bad cannot be shown to prove it fraudulent. Woodruff v. Whittle- sey, Kirby ( Conn. ) , 62. In civil proceedings, unless the character of the party be directly put in issue by the proceeding itself, evidence of his general character is not admissible. Fowler v. /Etna Ins. Co., 6 Cow. 673, 675, 16 Am. Dec. 460; Corning v. Corning, 6 N. Y. 97; Dain v. Wyckoff, 18 X. Y. 45; Gough v. St. John, 16 Wend. 646. If, however, the adverse party attack the character of any party or person interested in the action, his good character can be shown in rebuttal. Pratt v. Andrews, 4 X. Y. 493. See Young v. Johnson, 123 N. Y. 226. In actions for seduction and the like, the woman's bad character as to chastity may be shown. Hogan v. Cregan, 6 Rob. (Super. Ct. ) 138. See also on this subject Ford v. Jones, 62 Barb. 484; Wandell v. Ed- wards, 25 Hun, 498; Ayer v. Smith, 81 Hun, 322. Chap. VI.] THE LAW OF EVIDENCE. 303 The character of the plaintiff is not admissible in malicious prose- cution. Slcidmore v. Bricker, 77 111. 164; Eorne v. Sullivan, 83 111. 30. In a suit for assault and battery, the plaintiff's want of chastity cannot be shown. Dimick v. Downs, 82 111. 570. In trespass for personal violence, character is inadmissible. Cum- mins v. Crawford, 88 111. 312. Partnership cannot be proved by general reputation. Bowen v. Rutherford, 60 111. 41. In actions for seduction and the like the woman's bad character as to chastity may be shown. White v. Murtland, 71 111. 250. Character, how proved. — Moral character can be shown by general reputation only, and not by proof of particular acts. Robertson v. Hamilton, 16 Ind. App. 328; Griffith v. State, 140 Ind. 163; Indian- apolis, etc., Co. v. Pugh, 6 Ind. App. 510; Stalcup v. State, 146 Ind. 270; Bessette v. State, 101 Ind. 85; Cunningham v. State, 65 Ind. 377; Long v. Morrison, 14 Ind. 595; Meyncke v. State, 68 Ind. 401; Rawles v. State, 56 Ind. 433; Spencer v. Robbins, 106 Ind. 580. Character put in issue. — In a suit to set aside a conveyance for fraud, the reputation of the grantor for honesty is admissible. Van- sickle v. Shenk, 150 Ind. 413. In a civil action based upon an act done by the defendant which charges the plaintiff with being guilty of a crime, the plaintiff may prove his good character. Blizzard v. Hays, 46 Ind. 166. If the defendant, in an action for false imprisonment, introduces evidence casting suspicion on the plaintiff's character, he may offer evidence in support of it. American Co. v. Patterson, 73 Ind. 430. A witness to character may be asked if he has ever heard of the accused being charged with similar crimes. Shears v. State, 147 Ind. 51. Where one has testified as to present character as a saloon-keeper, he may be asked on cross-examination whether he has heard that he has run a gambling concern in connection with the saloon. Bar Inter v. State, 25 Ind. App. 597. One who has testified as to the defendant's good character, but has said on cross-examination that he never heard any one say anything about it, may be asked as to facts on which he based his answer. Baehner v. State, 25 Ind. App. 597. 304 A DIGEST OF [Part I. In divorce suits. — Where a plaintiff in divorce alleges instances of unchastity, defendant may prove her general good reputation for chastity. Hilker v. Hither, 153 Ind. 425. Admissible to prove want of probable cause in malicious prosecu- tion. — Am. Express Co. v. Patterson, 73 Ind. 430. Character of witnesses. — Proof as to general character of a wit- ness is inadmissible unless there is an attempt to impeach him. Johnson v. State, 21 Ind. 329. Witnesses may be impeached by showing bad character in a crim- inal case. Morrison v. State, 76 Ind. 335; Walton v. State, 88 Ind. 9. But on a charge of incest, the unchaste character of the female cannot be shown for purposes of impeachment. Kidicell v. State, 63 Ind. 384. If the character of a witness is attacked, it may be sustained by proof of good reputation. Clackner v. State, 33 Ind. 412 ; Clem v. State, 33 Ind. 418; Clark v. Bond, 29 Ind. 555; Harris v. State, 30 Ind. 131; Railway Co. v. Frawley, 110 Ind. 18; Sieger v. Pfeifer, 35 Ind. 13. Compare Fisher v. Hamilton, 49 Ind. 341. When one testifies as to the reputation of another, he may be cross- examined as to what he means by reputation. Hutts v. Hutts, 62 Ind. 214; Wachstetter v. State, 99 Ind. 290. Bad character for chastity cannot be proved by particular immoral acts with other persons. Robertson v. Hamilton, 16 Ind. App. 328. Maryland. When proof of marriage is sought to be made by proof of general reputation and cohabitation, the character of the woman for chas- tity is admissible. Jackson v. Jackson, 80 Md. 176. But not her reputation after she and her alleged husband have separated. Jack- son v. Jackson, 82 Md. 17. The fact that one is reputed to be tricky and likely to commit forgery is not admissible to prove that he did commit fraud or for- gery. Martin v. Good, 14 Md. 399. Reputation of one not a witness is not admissible. Hoffman v. State, 93 Md. 388. Where a deed is impeached for fraud, the grantee cannot give evidence of his good character in order to sustain the deed. Brooke v. Berry, 2 Gill, 83. Chap. VI.] TEE LAW OF EVIDENCE. 305 Pennsylvania. Authorities. — In civil proceedings, unless the character of the party be directly put in issue by the proceeding itself, evidence of his general character is not admissible. Am. Ins. Co. v. Hazen, 110 Pa. 530; Atkinson v. Graham, 5 Watts, 411; Porter v. Seiler, 23 Pa. 424; Nash v. Oilkeson, 5 S. & R. 352; Anderson v. Long, 10 S. & R. 55. Reputation of a party for truth may be proved against him if he becomes a witness. Barber v. Bull, 7 W. & S. 391. Character of one neither a witness nor a party not admitted. Blackburn v. Holliday, 12 S. & R. 140. Proof of specific acts not admissible to prove character. Frasner v. Railroad Co., 38 Pa. 104. Evidence of plaintiff's bad character not admitted in action for malicious prosecution. Winebiddle v. Porterfield, 9 Pa. 137; Rus- sell v. Shust&r, 8 W. & S. 308. In actions for seduction and the like the woman's bad character as to chastity may be shown. Van Storoh v. Griffin, 71 Pa. 240. In action for seduction the good reputation of the girl in one place may be proved to rebut evidence of her bad reputation in another place. Milliken v. Long, 188 Pa. 411. One's reputation may be proved to be good by evidence that it was not talked about. Milliken v. Long, 188 Pa. 411. Article 56. evidence of character in criminal cases. In criminal proceedings;, the fact that the person accused has a good character, is deemed to be relevant ; but the fact that he has a bad character is deemed to be irrelevant, unless it is itself a fact in issue, or unless evidence has been given that he has a good character, in which case evidence that he has a bad character is admissible. A person charged with an offence and called as a witness in pursuance of the Criminal Evidence Act, 1898, may not 20 306 A DIGEST OF [Part I. be asked, and if asked may not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with any offence other than that whereof he is then charged, or is of bad character, unless (i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith hu is then charged; 1 or (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his own good character ; or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor, or the witnesses for the prosecution ; or (iii) he has given evidence against any other person charged with the same offence. 2 When any person gives evidence of his good character other than his own sworn testimony, who — Being on his trial for any felony not punishable with death, has been previously convicted of felony ; 3 Or, who being upon his trial for any offence punishable under the Larceny Act, 1861, has been previously con- 1 See Article 11 and the concluding paragraphs of this article. 2 61 & 62 Vict. c. 36, s. 1 (/). 36 & 7 Will. IV. c. Ill, referring to 7 & 8 Geo. IV. c. 28, s. 11. If " not punishable with death " means not so punishable at the time Chap. VI.] THE LAW OF EVIDENCE. 307 victcd of any felony, misdemeanour, or offence punishable upon summary conviction: 4 Or who, being upon his trial for any offence against the Coinage Offences Act, 1861, or any former Act relating to the coin, has been previously convicted of any offence against any such Act. 5 The prosecutor may, in answer to such evidence of good character, give evidence of any such previous conviction before the jury return their verdict for the offence for which the offender is being tried. 6 In this article the word " character " means reputation as distinguished from disposition, and, except as previously mentioned in this article, evidence may be given only of general reputation and not of particular acts by which rep- utation or disposition is shown. 7 AMERICAN NOTE. General. Authorities. — 3 Greenleaf on Evidence (15th ed.), sec. 25; 5 Am, &, Eng. Encyclopaedia of Law (2d ed.), p. 866 et seq.; State v. Tozier, 49 Me. 404; Com. v. Webster, 5 Cush. (Mass.) 295, 324, 52 Am. Dec. 711; Miller v. Curtis, 158 Mass. 127, 35 Am. St. Rep. 469; Com. v. Leonard, 140 Mass. 473. The character must be as to points which would tend to show when 7 & 8 Geo. IV, c. 28 was passed (21 June, 1827), this narrows the effect of the article considerably. * 24 & 25 Vict. c. 96, s. 116. 5 24 & 25 Vict. c. 99, s. 37. 6 See each of the Acts above referred to. ^ R. v. Rowton, 1865, 1 L. & C. 520. R. v. Ttirberfield, 1864. 1 L. & C. 495, is a case in which the character of a prisoner became incident- ally relevant to a certain limited extent. 308 A DIGEST OF [Part I. that it was unlikely that the defendant committed the crime in question. Com. v. Nagle, 157 Mass. 554. In a prosecution for adultery, evidence of the good character for chastity of the woman with whom the adultery was alleged to have been committed is admissible. Com. v. Gray, 129 Mass. 474. In rape, evidence of the general character of the plaintiff re- specting the subject-matter of the charge may be introduced by the defendant. Seymour v. Merrills, 1 Root (Conn.), 459; Brunson v. Lynde, 1 Root (Conn.), 354. Whether the general character for truth of the complainant in a prosecution for rape, or attempted rape, may not always be shown in chief by the State, qucere. State v. Be Wolf, 8 Conn. 100. Except in prosecutions for rape or attempted rape, evidence is not admissible in support of the general character of a witness for truth, unless a direct attempt has been made to impeach it, or he is a stranger. Rogers v. Moore, 10 Conn. 16, 17. A witness may not testify as to the disposition of the accused. State v. Renton, 15 N. H. 169. Evidence of good character. — First paragraph of text. Com. v. Gazzolo, 123 Mass. 220; Edgington v. U. S., 164 U. S. 261; Com. v. Cleary, 135 Pa. St. 64; Jackson v. State, 81 Wis. 127; People v. Har- rison, 93 Mich. 594; State v. Howell, 100 Mo. 628; State v. Rodman, 62 la. 456. Good character may be shown in defense in a murder trial. Com. v. Hardy, 2 Mass. 303, 317; Com. v. Webster, 5 Cush. (Mass.) 296. The rule that good character is not to be considered unless the jury are in doubt on the other evidence is no longer law. Com. v. Leonard, 140 Mass. 479. Evidence of bad character. — State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; State v. Ellwood, 17 R. I. 763, 24 Atl. 782; State v. Hull, 18 R. I. 207, 26 Atl. 191, 20 L. R. A. 609; People v. Fair, 43 Cal. 137; Com. v. Saclcet, 22 Pick. (Mass.) 394; Com. v. Hardy, 2 Mass. 303, 317; Com. v. O'Brien, 119 Mass. 345; Rex v. Doaks, Quincy, 90. General reputation, not particular acts. — State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; Com. v. O'Brien, 119 Mass. 342, 345, 20 Am. Rep. 325; Com. v. Harris, 131 Mass. 336. Compare Com. v. Rob- inson, Thacher Cr. Cas. 230; Snyder v. Com., 85 Pa. St. 519; Mc- Queen v. State, 108 Ala. 54; Berneker v. State, 40 Neb. 810; State v. Chap. VI.] THE LAW OF EVIDENCE. 309 Lapage, 57 N. H. 245; Betts v. Lockwood, 8 Conn. 488, 489; State v. Ferguson, 71 Conn. 227. This must be that had by a person in his own community. Conkey v. People, 1 Abb. Dec. 418. New Jersey. General rule. — State v. Wells, Coxe, 424. The State may attack the character of an accused only when he introduces evidence that it is good, and even then the State may not prove any specific facts, but is restricted to evidence as to gen- eral reputation. Bullock v. State, 65 N. J. L. 557. Evidence of the character or reputation of an accused acquired subsequent to the commission of the offense is inadmissible. State v. Sprague, 04 X. J. L. 419. In a prosecution for having carnal knowledge of a woman under the age of consent, the defendant may prove his " reputation for morality, virtue, and honesty in living." State v. Snover, 63 N. J. L. 383. Character of accused for truthfulness.— Evidence of a witness' reputation for truthfulness may be given as it exists at the time such witness testifies, though the witness is also the defendant in a criminal prosecution. State v. Sprague, 64 N. J. L. 41!). Chastity. — In prosecutions for rape the bad character of the prosecutrix for chastity prior to the offense is admissible. O'Blenis v. State, 47 N. J. L. 279. Reputation for chastity may be proved by witnesses who move in the same circle and have never heard the woman's chastity ques- tioned. State v. Brown, 64 N. J. L. 414; Zabriskie v. State, 43 N. J. L. 644. In bastardy proceedings the accused may prove his previous good character for morality. Hawkins v. State, 1 Zab. 630; Dally v. Woodbridge, 1 Zab. 491. Maryland. In a prosecution for keeping a bawdy-house, the general reputa- tion of the house is not admissible, but the general reputation of those who frequent the house is admissible. Beard v. State, 71 Md. 275. In such a case a particular instance of lewdness is admissible. Id. Defendant may prove the character of the deceased as a danger- ous man. Jenkins v. State, 80 Md. 72. 310 A DIGEST OF [Pabt I. Evidence that defendant was transported as a convict from Eng- land is admissible to prove bad character. State v. Itidgely, 2 Har. & McH. 120. That one is a common thief may be proved by general reputation. World v. State, 50 Md. 49. Pennsylvania. General rule. — Com. v. Wetland, 1 Brewst. 312; Com. v. Clegget, 3 Leg. Gaz. 9; Com. v. Winnemore, 1 Brewst. 356. General reputation of a witness for the State in a murder trial cannot be shown. Com. v. Payne, 205 Pa. 101. Evidence of the turbulent character of the deceased may be ad- missible on the question of self-defense. Alexander v. Com., 105 Pa. 1. In rape, the repute of the female is admissible, including evi- dence of specific unchaste acts. Com. v. Davis, 3 Pa. Dist. 271. Evidence of good character. — First paragraph of text. Com. v. Cleary, 135 Pa. 64. Not only where a doubt of guilt exists on other proof, but to raise such a doubt. Com. v. Clegget, 3 Leg. Gaz. 9. Testimony as to the defendant's good character must be confined to general reputation and cannot include specific acts. Snyder v. Com., 85 Pa. 519. Proof of good character alone may be sufficient to raise a reason- able doubt. Com. v. Barpar, 2 Law T. (N\ S.) 37; Becker v. Com., 9 Atl. 510; Com. v. Shaub. 5 Lane. Bar. 121; Com. v. Harmon, 199 Pa. 521. Previous good character cannot avail when there is clear proof of guilt. Com. v. Smith, 6 Am. Law Keg. (0. S.) 257; Com. v. Piatt, 33 Leg. Int. 436; Heine v. Com., 91 Pa. 145. Defendant may show that he had been sent to a reform school through no fault of his own. Abernethy v. Com., 101 Pa. 322. Article 57. character as affecting damages. In civil cases, the fact that a person's general reputation is bad, may it seems be given in evidence in reduction of damages ; but evidence of rumours that his reputation was Chai\ VI.] THE LAW OF EVIDENCE. 311 bad, and evidence of particular facts showing that his dis- position was bad, cannot be given in evidence. 8 In actions for libel and slander in which the defendant does not by his defence assert the truth of the statement complained of, the defendant is not entitled on the trial to give evidence in chief with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence. 9 AMERICAN NOTE. General. Authorities. — Ogden on Libel and Slander (Am. ed. ), p. 305, note (a); 5 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 850 et seq.; Stone v. Varney, 7 Mete. (Mass.) 86, 39 Am. Dec. 762; Mc- Intyre v. Levering, 148 Mass. 546; Clark v. Brown, 116 Mass. 504; Rowland v. Blake Mfg. Co., 156 Mass. 543, 568. This rule, in this country, at least, is restricted to actions for injury to character. The case cited by the author applies it to cases of slander and libel. Evidence of good general moral character may be introduced in libel cases. Sickra v. Small, 87 Me. 493; Clark v. Brown, 116 Mass. 504 ; Duval v. Davey, 32 O. St. 604, 612 ; Post Publishing Co. v. Hal- lam, 59 Fed. Eep. 530. And evidence of the general bad reputation of the plaintiff may be offered to mitigate damages. Nellis v. Cramer, 86 Wis. 337; Drown v. Allen, 91 Pa. St. 393; Bathrick v. Detroit Post Co., 50 Mich. 629. 8 Scott v. Sampson, 1882, 8 Q. B. D. 491, in which all the older cases are minutely examined in the judgment of Cave, J. 9 R. S. C, Order XXXVL, rule 37. 312 A DIGEST OF [Pabt I. In suit for defamation, evidence to show bad character, so far as integrity and moral worth or the traits involved in the libel are concerned is alone admissible. Leonard v. Allen, 11 Cush. (Mass.) 241. Such evidence is admissible in a suit for malicious prosecution. Bacon v. Towne, 4 Cush. (Mass.) 217. That reports were circulated, charging the plaintiff with the act imputed in the slanderous statement, cannot be shown. Sickra v. Small, 87 Me. 493; Mahoney v. Belford, 132 Mass. 393; Pease v. Shippen, 80 Pa. St. 513; Banners v. McClelland, 74 la. 318. Nor can they in malicious prosecution if the defendant did not know of the reports. Lathrop v. Adams, 133 Mass. 471 ; Larrabee v. Minn. Tribune Co., 36 Minn. 141. The plaintiff may give evidence in chief of his good character and need not wait until the defendant has adduced evidence of his bad character. Bennett v. Hyde, 6 Conn. 24. The defendant may show in mitigation of damages that it had become a matter of common and general report that the facts charged by the slanderous words were true, before he uttered them; both as showing that the plaintiff's reputation was not un- sullied, and as evidence of the defendant's innocent intent. Case v. Marks, 20 Conn. 251, 252. In an action of slander for imputing certain practices to the plaintiff, the defendant may show that the reputation <5f the plain- tiff is disparaged by there having been reports in the neighborhood that he had been guilty of practices similar to those imputed to him. Bailey v. Hyde, 3 Conn. 466. General reputation, not particular acts. — The defendant is re- stricted to proof of general reputation. He cannot show specific wrongful acts. McLaughlin v. Cowley, 131 Mass. 70; Miller v. Curtis, 158 Mass. 127, 131 ; Hallowell v. Guntle, 82 Ind. 554. Proof of general reputation is solely competent. Specific wrongful acts cannot be shown. Hart v. McLaughlin, 64 N. Y. Supp. 827, 51 App. Div. 411. See Hilton v. Carr, 58 N. Y. Supp. 134, 40 App. Div. 490. New Jersey. Libel and slander. — Proof of general reputation is allowed in slander. Sayrc v. Sayre, 25 N. J. L. 235. In slander, evidence that the words were commonly used of the plaintiff by others is admissible. Cook v. Barkley, Pen. 169. Ohap. VI.] THE LAW OF EVIDENCE. 313 The defendant in slander or libel may show that he did not originate the calumnious charge, in mitigation of damages. Ho- boken Printing Co. v. Kahn, 58 N. J. L. 359. Malicious prosecution. — In action for malicious prosecution evi- dence of the bad character of the plaintiff is admissible. O'Brien v. Frasier, 47 N. J. L. 349. Breach of promise. — Lewd conduct after the promise by the plain- tiff in breach of promise can be shown in mitigation of damages. Budd v. Crea, 1 Hal. 370. Maryland. In breach of promise, the character of the plaintiffs mother is not admissible in mitigation of damages or otherwise. Lewis v. Tapman, 90 Md. 294. Libel and slander. — In actions for libel and slander, the character of the plaintiff may be proved. Dorsey v. Whipps, 8 Gill, 457 ; Shilling v. Carson, 27 Md. 175. Pennsylvania. In breach of promise, plaintiff's bad character for chastity is admissible in mitigation of damages. Van 8 torch v. Qriffin, 71 Pa. 240. In libel and slander, the defendant may prove the plaintiff's bad reputation. Henry v. Norwood, 4 Watts, 347 ; Steinman v. McWil- liams, 6 Pa. 170; Conroe v. Conroe, 47 Pa. 198; Moyer v. Hoyer, 49 Pa. 210; Drown v. Allen, 91 Pa. 393. Plaintiff in a libel case may give evidence of his good reputation after the defendant has attacked it. Clark v. North American Co., 203 Pa. 346; Chubb v. Gesell, 34 Pa. 114. That reports were circulated, charging the plaintiff with the act imputed in the slanderous statement, cannot be shown. Pease v. Shippen, 80 Pa. 513. Evidence of bad character is not admissible in an action on a promissory note. Battles v. Laudenslager, 84 Pa. 446. 314 A DIGEST OF [Part II. PART II. ON PROOF. CHAPTER VII. FACTS PROVED OTHERWISE THAN BY EVIDENCE — JU- DICIAL NOTICE. Article 58.* of what facts the court takes judicial notice. It is the duty of all judges to take judicial notice of the following facts : — (1) All unwritten laws, rules, and principles having the force of law administered by any Court sitting under the authority of Her Majesty and her successors in England or Ireland, whatever may be the nature of the jurisdiction thereof. 1 (2) All public Acts of Parliament, 1 and all Acts of Par- liament whatever, passed since February 4, 1851, unless the contrary is expressly provided in any such Act. 2 (3) The general course of proceeding and privileges of Parliament and of each House thereof, and the date and * See note XXVI. 1 1 Fh. Ev. 460-1 ; Taylor, s. 5; and see 36 & 37 Vict. c. 66 (Ju- dicature Act of 1873), s. 25. 2 52 & 53 Vict. c. 63 (The Interpretation Act, 1889), s. 9. Chap. VII.] THE LAW OF EVIDENCE. 315 place of their sittings, but not transactions in their jour- nals. 3 (4) All general customs which have been held to have the force of law in any division of the High Court of Justice or by any of the superior courts of law or equity, and all customs which have been duly certified to and recorded in any such court. 4 (5) The course of proceeding and all rules of practice in force in the Supreme Court of Justice. Courts of a limited or inferior jurisdiction take judicial notice of their own course of procedure and rules of practice, but not of those of other courts of the same kind, nor does the Supreme Court of Justice take judicial notice of the course of pro- cedure and rules of practice of such Courts. 5 (6) The accession and \_semble~\ the sign manual of Her Majesty and her successors. 6 (7) The existence and title of every State and Sovereign recognised by Her Majesty and her successors. 7 (8) The accession to office, names, titles, functions, and when attached to any decree, order, certificate, or other 3 1 Ph. Ev. 460; Taylor, s. 5; but see 8 & 9 Vict. c. 113, s. 3, as to journals of the Houses of Parliament. ■i The old rule was that each Court took notice of customs held by or certified to it to have the force of law. It is submitted that the effect of the Judicature Act, which fuses all the Courts together, must be to produce the result stated in the text. As to the old law, see riper v. Chappell, 1845, 14 M. & W. 649-50. Ex parte Powell, In re Matthews, 1875, 1 Ch. Div. 505-7, contains some remarks by Lord Justice Mellish as to proving customs till they come by degrees to be judicially noticed. 5 1 Ph. Ev. 462-3 ; Taylor, s. 20. 6 1 Ph. Ev. 458 ; Taylor, ss. 18, 14. 7 1 Ph. Ev. 460 ; Taylor, s. 4. 310 A DIGEST OF [Pabt II. judicial or official documents, the signatures of all the judges of the Supreme Court of Justice. 8 (9) The Great Seal, the Privy Seal, the seals of the Superior Courts of Justice, 9 and all seals which any Court is authorised to use by any Act of Parliament, 10 certain other seals mentioned in Acts of Parliament, 10 the seal of the Corporation of London, 11 and the seal of any notary public in the Queen's dominions. 12 (10) The extent of the territories under the dominion of Her Majesty and her successors; the territorial and political divisions of England and Ireland, but not their geographical position or the situation of particular places ; the commencement, continuance, and termination of war between Her Majesty and any other Sovereign; and all other public matters directly concerning the general govern- ment of Her Majesty's dominions. 13 (11) The ordinary course of nature, natural and artificial divisions of time, the meaning of English words. 14 (12) All other matters which they are directed by any statute to notice. 8 1 Ph. 462; Taylor, s. 14; and as to latter part, 8 & 9 Vict. c. 113, s. 2, as modified by 36 & 37 Vict. c. 66, s. 76 (Judicature Act of 1873). 9 The Judicature Acts confer no seal on the Supreme or High Court or its divisions. io Doe v. Edicards, 1839, 9 A. & E. 555. See a list in Taylor, s. 6. " 1 Ph. Ev. 464 ; Taylor, s. 6. 12 Cole v. Sherard, 1855, 11 Ex. 482. As to foreign notaries, see Earl's Trust, 1858, 4 K. & J. 300. 13 1 Ph. Ev. 466, 460, 458; and Taylor, s. 17. 2*1 Ph. Ev. 465-6; Taylor, s. 16. Chap. VII.] THE LAW OF EVIDENCE. 317 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 4 et seq.; 17 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 892 et seq. The instances of facts taken judicial notice of can be multiplied indefinitely. A few illustrative ones only appear in the note. Refer- ence is made for others to the authorities cited here and to the various digests. Courts will take judicial notice of the geographical divisions of the State. Harney v. Wayne, 72 Me. 430 ; Bellows v. Elliott, 12 Vt. 569 ; Ham v. Ham, 39 Me. 266; State v. Jackson, 39 Me. 291 ; Goodwin v. Appleton, 22 Me. 453; Jones v. U. S., 137 U. S. 202; State v. Wag- ner, 61 Me. 178; Mossman v. Forrest, 27 Ind. 233, 236; Rogers v. Cady, 104 Cal. 288 ; People v. Waller, 70 Mich. 237 ; State v. Cunning- ham, 81 Wis. 440; Pitts v. Lewis, 81 la. 51. And of the boundaries of the State, as claimed by it. State v. Dunwell, 3 R. I. 127. But not of the limits of a place which is not a public corporation. Blan- din v. Sargent, 33 N. H. 239, 66 Am. Dec. 720. And of the geographi- cal features of the State, as its large lakes, rivers, and mountains. Winnipiseogee Lake Co. v. Young, 40 N. H. 420; People v. Brooks, 101 Mich. 98 ; State v. Thompson, 85 Me. 189. But not of the fact that gin and turpentine are " inflammable liquids," within the terms of an insurance policy. Mosley v. Vt. Mut. Fire Ins. Co., 55 Vt. 142. Courts take judicial notice of the fact that vacant buildings are more exposed to fire than those occupied. White v. Phoenix Ins. Co., 83 Me. 279, 22 Atl. 167. Judicial notice is superior to proof as a means of proving facts. State v. Main, 69 Conn. 136. The court will interpret language by the aid of those facts which pertain to that common and general fund of knowledge and in- formation which belongs to the domain of things of which all courts are bound to take judicial notice. Robinson v. Clapp, 65 Conn. 395. Our courts take judicial notice of the seal of a foreign govern- ment. Oriswold v. Pitcairn, 2 Conn. 89. Courts take judicial notice of the date of the rising of the gen- eral assembly. Perkins v. Perkins, 7 Conn. 564. And of the local 318 A DIGEST OF [Part IL divisions of the State into towns and counties. State v. Powers, 25 Conn. 50. And of the laws governing courts and of the jurisdiction of inferior courts whose judgments they revise. Clapp v. Hartford, 35 Conn. 74. And of railroad lines, mail facilities, and telegraph communication. Morgan v. Parrel, 58 Conn. 428. And of the hours of sunrise and sunset, but an almanac may be read on the trial to refresh the memory of the court and jury. State v. Morris, 47 Conn. 180. And that some colored paper is dyed with poisonous substances and some is not. O'Keefe v. National, etc., Co., 66 Conn. 45. And that peach " yellows " exists and is a serious disease. State v. Main, 69 Conn. 135. And that blasting with dynamite is intrinsically dangerous. Norwalk Gas-Light Co. v. Norwalk, 63 Conn. 528. And that the term " policy playing " was in current use at the time a certain ordinance was passed. State v. Carpenter, 60 Conn. 102. Courts will take judicial notice of an English statute concerning prize causes. Hooker v. Pagan, 7 Dane Abr. 645. So of the Con- stitution of another State. Buffum v. Stimpson, 5 Allen (Mass.), 591. So of the judges of lower courts. Com. v. Jeffts, 14 Gray (Mass.), 19; Vahle v. Brackenseik, 145 111. 231; State v. Wright, 16 R. I. 518; State v. Higgins, 124 Mo. 649; Kennedy v. Com., 78 Ky. 447; Kilpatrick v. Com., 31 Pa. St. 198; People v. McConnell, 155 111. 192. So of the various counties. Com. v. Desmond, 103 Mass. 445. So of the jurisdiction of a court. Com. v. Desmond, 103 Mass. 445. So of the navigability of a river. Com. v. King, 150 Mass. 221, 22 1ST. E. 905, 5 L. R. A. 536. So of the fact that tobacco and cigars sold by a tobacconist are not drugs. Com. v. Marzynski, 149 Mass. 68, 21 N. E. 228. Treaty. — A treaty must be judicially noticed, for it is the su- preme law of the land. People ex rel. Young v. Stout, 81 Hun, 336; affirmed, on opinion below, in 144 N. Y. 699. The cession of the " Pulteney estate " to Massachusetts, by the treaty of 17S6 will be judicially noticed and likewise the extinguish- ment of the Indian title thereto. Howard v. Moot, 64 N. Y. 262, 2 Hun. 475. Great seal. — The courts will take judicial notice of the seal of a foreign State. Lincoln v. Battelle, 6 Wend. 475. And of the mode of affixing the great seal, whether by appending Chap. VII.] THE LAW OF EVIDENCE. 319 it to a patent as formerly, or by impressment. Williams v. Sheldon, 10 Wend. 654. Common law and statutes. — The court will take judicial notice of the existence of the common law in England at the time of the Amer- ican Revolution, and will presume, unless it is otherwise proved, that this law remains unchanged. Stokes v. Macken, 62 Barb. 145. And also that the common law does not prevail in France. In re Hall, 70 N. Y. Supp. 406. But the statute laws of another State, not in harmony with the common law, will not be judicially noticed. Harris v. White, 81 N. Y. 532; Holmes v. Broughton, 10 Wend. 75; Hosford v. Nichols, 1 Paige, 220; Humphreys v. Chamberlain, 1 Code Rep. (N. S.) 3S7. Statutes. — Judicial notice will be taken of statutes which define boundaries. Ross v. Reddick, 1 Scam. 73. Of public acts. Ross v. Reddick, 1 Scam. 73; Illinois Cent. R. R. Co. v. Wren, 43 111. 77 ; Binkert v. Jansen, 94 111. 283 ; R., R. I. & St. L. R. R. Co. v. Lynch, 67 111. 149; Grob v. Cushman, 45 111. 119. Of a public act not pleaded. Vance v. Rankin, 194 111. 625, 62 N. E. 807, reversing 95 111. App. 562. Of duties under statutes. People v. Hill, 163 111. 186. Acts of Congress. — Of acts of Congress. Gooding v. Morgan, 70 111. 275; Smith v. Stevens, 82 111. 554; Dickenson v. Breeden, 30 111. 279. Of the charter of a city. People v. Wilson, 3 Brad. 368. Of the charter of Springfield. Browning v. Springfield, 17 111. 143, 147. Judicial facts.— Of the terms of the Circuit Court. Buckles v. Northern Bank, 63 111. 268. Of the Chicago courts and where they are held. Hearson v. Gran- dine, 87 111. 115. Of the reports of legal decisions. McDeed v. McDeed, 67 111. 546. Of the laws of other States in so far as is necessary in ascertaining the faith and credit to be given to their judgments. Hull v. Webb, 78 111. App. 617. Of the persons who are justices. Livingston v. Kettelle, 1 Gilm. 116; Graham v. Anderson, 42 111. 515; Shattuck v. People, 4 Scam. 478; Irving v. Brownell, 11 111. 403. Of judges and the organization of courts. Vahle v. Brackenseck, 145 111. 231. 320 A DIGEST OF [Part II. Of the judges of lower courts. Vahle v. Brackenseck, 145 111. 231; People v. McConnell, 155 111. 192. Of the resignation of a judge. People v. McConnell, 155 111. 192. Of attorneys. Ferriss v. Com. Nat. Bank, 55 111. App. 218; Kuehne v. Goit, 54 111. App. 596. That a certain firm are attorneys-at-law. Ferriss v. Com. Nat. Bank, 158 111. 237. Of the records of the court itself. Rochester v. Brown, 82 111. 279. Of an order in the case at bar. Barley v. Kerr, 180 111. 412, 54 'J. E? 165. Of a record on a former appeal. World's Columbian Exposition Co. v. Lehigh, 94 111. App. 433. Of the jurisdiction of the Supreme Court of another commonwealth. Rae v. Hurlbut, 17 111. 572, 577. Public officers. — Of who are public officers. Dyer v. Flint, 21 111. 80; Brush v. Lemma, 77 111. 496; Stout v. Slattery, 12 111. 162; Dyer v. Last, 51 111. 179; Thielmann v. Burg, 73 111. 293. Of the residence of a notary. Hertig v. People, 159 111. 237. Customs. — Of certain customs. Munn v. Burch, 25 111. 35. Of the usual mode of transacting business. Nash v. Classen, 163 111. 409. That a letter mailed at Utica, 111., will ordinarily reach Des Moines, Iowa, within seven or eight days. National Masonic Accident Assn. v. Seed, 95 111. App. 43. Geographical facts. — Of the organization of a township. County of Rock Island v. Steele, 31 111. 543. Of a township number. Kile v. Yellowhead, 80 111. 208. Of the location of towns and counties. People v. Suppiger, 103 111. 434. Of subdivisions of city and town land in questions of homestead. Sever v. Lyon, 170 111. 395, 48 N. E. 926. Of the counties in Illinois. Higgins v. Bullock, 66 111. 37. That a city was incorporated under the law of 1872. Brush v. Lemma, 77 111. 496. Of the population of various counties. Worcester Nat. Bank v. Cheney, 94 111. 430. Of the meaning of initials employed in describing land. Paris v. Lewis, 85 111. 597; Kile v. Yellowhead, 80 111. 208. Facts commonly known. — Of facts commonly observed. C, B. <£ Q. R. R. Co. v. Warner, 108 111. 538. Chap. VII.] THE LAW OF EVIDENCE. 321 That the owner of an omnibus line is a common carrier. Parmalee v. McNulty, 9 111. 556. Of the nature of a clearance card given by a railroad to its em- ployee. C, C, C. & St. L. Ry. Co. v. Jenkins, 174 111. 398, reversing 75 111. App. 17. Of the current rate of exchange. Lowe v. Bliss, 24 111. 169. Public facts. — Of the result of an election as to removing a county seat. Andrews v. Knox County, 70 111. 65. Of what appropriation had been made for a capitol and its locality. People v. Stuart, 97 111. 123. That a city had been incorporated under the general law. Potwin v. Johnson, 108 111. 70. Of the incorporated cities of Illinois. Spring Valley v. Spring Valley Coal Co., 71 111. App. 432. Of the Federal census. C. & A. Ry. Co. v. Baldridge, 172 111. 329, 52 N. E. 263. Of the meaning of " Sec. 23, 38, 14." McChesney v. Chicago, 173 111. 75, 50 N. E. 191. Qualities ef matter. — The court will take judicious notice that whiskey is intoxicating. WassQn v. First Nat. Bank, 107 Ind. 206, 219; State v. Jones, 3 Ind. App. 121, 122. That brandy is intoxicating. Fenton v. State, 100 Ind. 598, 599. That beer is a malt liquor, and that it is intoxicating (overruling Lathrope v. State, 50 Ind. 555; Schlosser v. State, 55 Ind. 82; Shaw v. State, 56 Ind. 188; Plunkett v. State, 69 Ind. 68, and Kurz v. State, 79 Ind. 488) ; Myers v. State, 93 Ind. 251, 253; Mullen v. State, 96 Ind. 304, 306; Dant v. State, 106 Ind. 79, 80; Wasson v. First Nat. Bank, 107 Ind. 206, 219. See also Elare v. Smith, 43 Ind. 483. That natural gas is dangerous, inflammable and explosive. Jamie- son v. Indiana Natural Gas & Oil Co., 128 Ind. 555, 12 L. R. A. 652, 28 N. E. 76. The court will not take judicial notice that wine is not intoxicat- ing. Jackson v. State, 19 Ind. 312. As to the amount of leakage from natural gas mains. Mississinewa Min. Co. v. Patton, 129 Ind. 127, 28 Am. St. Rep. 203, 28 N. E. 1113. Judicial matters. — The court will take judicial notice of the time and duration of terms of court as fixed by law. McCrory v. Anderson, 103 Ind. 12, 15; Carmody v. State, 105 Ind. 546, 550; Durre v. Brown, 7 Ind. App. 127, 34 N. E. 577. 21 322 A DIGEST OF [Pabt EL Of the terms of other courts in different counties in the State. Taylor v. Canaday, 155 Ind. 671; Sanders v. Hartze, 17 Ind. App. 243. Of the sessions of the Circuit Courts in the various counties when the question arises in the Supreme Court. McGinnis v. State, 24 Ind. 500. Of its own officers, and the genuineness of their signatures. Hipes v. State, 73 Ind. 39, 40; Mount joy v. State, 78 Ind. 172, 174; Choen v. State, 85 Ind. 209, 210; Beller v. State, 90 Ind. 448, 449; Deitz v. State, 123 Ind. 85, 86; Hammann v. Mink, 99 Ind. 279. Of the signature of the clerk. Buell v. State, 72 Ind. 523. Of the persons who are judges of the Circuit Courts, the question arising in the Supreme Court. Negley v. Wilson, 14 Ind. 215. Of the previous orders in the case. Cluggish v. Koov°, 15 Ind. App. 599, 609; Mode v. Beasley, 143 Ind. 306, 325. (Inspecting its records even in another case, either on its own motion or on the motion of counsel), Berry v. State, 144 Ind. 503, 517. The court icill not take judicial notice of the records and proceed- ings in another case in the same court. Grusenmeyer v. City of Lo' gansport, 7 6 Ind. 549, 552; Le Plante v. Lee, 83 Ind. 155, 156. Public events. — The court will take judicial notice of matters of public history. Williams v. State, 64 Ind. 553, 31 Am. Rep. 135; Ueuthorn v. Shepherd, 1 Blackf. 157; Brooke v. Filer, 35 Ind. 402 (Civil War) ; Carr v. McCampoell, 61 Ind. 97 (Clarke's grant). Of the results of the United States census. Stultz v. State, 65 Ind. 492; Hawkins v. Thomas, 3 Ind. App. 399, 29 N. E. 157.. Of a proclamation of the Governor. Dunning v. N. A. & S. R. Go. y 2 Ind. 437. That national bank stock constitutes a considerable part of the capital of the State. Wesson v. First Nat. Batik, 107 Ind. 206, 8 N. E. 97. Of the accession of the President or Governor. Hizer v. State, 12 Ind. 330. That the trustee of the civil, is also trustee of the school, town- ship. Inglis v. State, 61 Ind. 212. That the requisite steps for the relocation of the county seat of Crawford county were taken. Mode v. Beasley, 163 Ind. 306, 42 N. E. 727. Of the fact that certain records were kept in the office of the State Adjutant-General. Monroe County Comrs. v. May, 67 Ind. 562. Chap. VII.] THE LAW OF EVIDENCE. 323 The court will not take judicial notice of the time of division of counties and the erection of new ones by commissioners under the general law. Buckinghouse v. Gregg, 19 Ind. 401. Geographical facts. — The court will take judicial notice of the prominent geographical features of the country. Hays v. State, 8 Ind. 425; Mossman v, Forrest, 27 Ind. 233; Terre Haute, etc., R. R. Co. v. Pierce, 95 Ind. 49G, 502; Wasson v. First Nat. Bank, 107 Ind. 206, 220; Peck v. Sims, 120 Ind. 345, 348; Board, etc. v. Castctler. 7 Ind. App. 309, 312. Of the general geographical features of their own country, State,. or judicial district as to the existence and location of its principal mountains, rivers, and cities. Mossman v. Forrest, 27 Ind. 233, 236. Of the political divisions of the State. Indianapolis R. R. Co. v. Stephen. 28 Ind. 429. Of a county created by public statute. Buckinghouse v. Gregg, 19 Ind. 401. Of the county where certain places are located. Indianapolis & C R. R. Co. v. Case, 15 Ind. 42; L., N. A. & C. By. Co. v. McAfee, 15 Ind. App. 442, 43 X. E. 36; Indianapolis & C. R. R. Co. v. Stephens, 28 Ind. 429. Of the area of a county. Jasper County Comrs. v. Spiller, 13 Ind. 235. Of the national surveys and of the boundaries of counties. Dutch v. Boyd, 81 Ind. 146, 148; Wilcox v. Moudy, 82 Ind. 219. 220: Broun v. Ogg, 85 Ind. 234, 236; Keepfer v. Force, 86 Ind. 81, 87; Broun v. Anderson, 90 Ind. 93, 95; Richardson v. Hedges, 150 Ind. 53; Stock- well v. State ex rel., 101 Ind. 1, 7; Bryan v. Seholl, 109 Ind. 367, 371; Dawson v. James, 64 Ind. 162; Mossman v. Forrest, 27 Ind. 233; Murphy v. Hendricks, 57 Ind. .593; Burton v. Ferguson, 69 Ind. 486; Buchanan v. Whitam, 36 Ind. 257 (Ripley county lands) ; Bannister v. Grassy Fork Ditching Assn., 52 Ind. 178; Rich v. Grassy Fork Ditching Assn., 52 Ind. 187. Of the location of counties with reference to each other. Denny v. State, 144 Ind. 503; Board, etc. v. State, 147 Ind. 476. Of the various county seats. Mode v. Beasley, 143 Ind. 306. Whether or not they are incorporated. Thorntoicn v. Fingate, 21 Ind. App. 537. And if incorporated — of the incorporating statute. Evansville v. Frazer, 24 Ind. App. 628. Of county boundaries, and that a certain distance from a certain place is within the same county, the question arising in the Supreme 324 A DIGEST OF [Part II. Court. Louisville, etc., Ry. Co. v. Breckenridge, 64 Ind. 113, on this point overruled; Terre Haute, etc., R. R. Co. v. Pierce, 95 Ind. 496, 502; Wasson v. First Nat. Bank, 107 Ind. 206, 220. Of the county in which is located land described by township and range. Bryan V. Scholl, 109 Ind. 367, 370. Of the county in which a highway, passing through lands de- scribed by sections, townships, and ranges, is located. Adams v. Harrington, 114 Ind. 66, 72, 14 N. E. 603. Of the county in which is located a public ditch going between named points and passing through lands described by section, town- ship, and ranges. Smith v. Clifford, 99 Ind. 113, 115. Of the position of towns in a county. Indianapolis d C. R. R. Co. V. Stephens, 28 Ind. 429. Of the mode of subdividing congressional townships into sections. Mossman V. Forrest, 27 Ind. 233. As to what subdivisions in a section of land are fractional parts. Peck v. Sims, 120 Ind. 345, 348 ; State ex rel. v. Gramelspacher, 126 Ind. 398, 403. Of the position of the falls of the Ohio. Cash v. Auditor of Clark .County, 7 Ind. 227. That White river in Marion county is not a navigable stream. Ross v. Faust, 54 Ind. 471, 23 Am. Rep. 655. Of the course of the Ohio river. Hays v. State, 8 Ind. 425. Of the location of cities and towns, and in what counties they are. Louisville, etc., R. R. Co. v. Hixon, 101 Ind. 337, 338. Of the facilities of travel between certain points, and the time re- quired. Fitzpatrick v. Papa, 89 Ind. 17 ; 20; Wasson v. First Nat. Bank, 107 Ind. 206, 220. Of the usual route and tbe speed of travel from a point in In- diana (i. c, Centreville), to one in New York (i. c., Rochester), (dis- tinguishing 1 Blackf. 400). Hipes v. Cochran, 13 Ind. 175; Manning v. Gasharie, 27 Ind. 399. Of the navigation or navigability of streams. Neaderhouser v. State, 28 Ind. 257. - Of the time when counties were divided and new ones expected by commissioners under the general law. Buckinghouse v. Gregg, 19 Ind. 401. That a particular legal subdivision of a section is not practical. Peck v. Sims, 120 Ind. 345, 22 N. E. 313. Of the location of stations on railroads. Louisville, etc., R. R. Co. Chap. VII.] THE LAW OF EVIDENCE. 325 v. McCaffee, 15 Ind. App. 442 ; Indianapolis & C. R. R. Co. v. Case, 15 Ind. 42; Indianapolis & C. R. R. Co. v. Stephens, 28 Ind. 429. The court ivill not take judicial notice of the precise boundaries of the political divisions of the State further than described in pub- lic statutes. Indianapolis & C. R. R. Co. v. Stephens, 28 Ind. 429. Of the limits of a town or city. Qrusenmeyer v. City of Logans- port, 76 Ind. 549, 552; City of Indianapolis v. McAvoy, 86 Ind. 587, 589; Town of Cicero v. Williamson, 91 Ind. 541, 542. As to whether a railroad company owns and operates a road through a particular county. Indianapolis & G. R. R. Co. v. Ste- phens, 28 Ind. 429; Indianapolis & C. R. R. Co. v. Kibby, 28 Ind. 479. As to whether we are at war or peace with a certain nation. Baby v. Dubois, 1 Blackf. 255. Relations with foreign nations. — The court takes judicial notice. Course of nature, etc. — The court will take judicial notice. The course of the seasons and of husbandry and that the use of land is worth more during the cropping season than in winter. Ross V. Boswell, 60 Ind. 235. Of the days on which fall Sundays and holidays. Swales v. Grubbs, 126 Ind. 106, 110, 25 N. E. 877; Chrisman v. Tuttle, 59 Ind. 155. Or other days. Williamson v. Brandenberg, 6 Ind. App. 97, 32 N. E. 1055. Of the usual method of computing time. Hedderich v. State, 101 Ind. 564, 571, 1 N. E. 47, 51 Am. Rep. 768. That twenty years had not elapsed from April 23, 1842, to January 30, 1862. Harding v. Third Presbyterian Church, 20 Ind. 71. Of seed time and harvest. Abshire v. Mather, 27 Ind. 381 (suit on note due "after harvest"). Of the laws of nature, including electricity. City of Crawfordsville V. Braden, 130 Ind. 149, 158. The court will not take judicial notice of the various modes of generating, transmitting, and using electricity. City of Craicfords- ville V. Braden, 130 Ind. 149, 158. Meaning of words. — The court will take judicial notice of the usual abbreviations. Heddrich v. State, 101 Ind. 564, 571. Such as " C O D." United States Express Co. v. Keefer, 59 Ind. 263. That the abbreviation " otcb." in a scire facias, stands for October. Reams v. State, 3 Blackf. 334. 326 A DIGEST OF [Part II. That a note payable at " Citizens' Bank, Noblesville, Ind.," is payable in Indiana. Burroughs v. Wilson, 59 Ind. 536. Matters of general knowledge. — The court takes judicial notice of matters of general knowledge. Eeddrich v. State, 101 Ind. 564, 571; Indianapolis, etc., Ry. Co. v. Clay, 4 Ind. App. 282, 285. That employees of a bank other than the cashier must have access to the funds. La Rose v. Logansport Nat. Bank, 102 Ind. 332, 1 N. E. 805. The court will not take judicial notice of the fact that a signature in script, purporting to be written, was placed there by some me- chanical contrivance. Rosenstein v. State, 9 Ind. App. 290, 291. That electric light is safer and more healthful than ordinary light. City of Crawfordsville v. Braden, 130 Ind. 149, 159. Of the mode in which business is usually carried on by insurance agents. Eoive v. Provident Fund Soc, 7 Ind. App. 586, 594. Of the duties of railroad trainmen. Indianapolis, etc., Ry. Co. v. Clay, 4 Ind. App. 282, 2S5. Of reasonable time for a passenger train to stop under ordinary cir- cumstances (i. e., three minutes). Louisville, etc., R. R. Co. v. Cos- tello, 9 Ind. App. 462, 468. As to whether a fence sufficient to restrain sheep will restrain hogs. Endere v. McDonald, 5 Ind. App. 297, 31 N. E. 1056. Changing rules. — By making provisions as to proof of facts, the statute may change the rule otherwise in force as to judicial notice of such facts. People v. Murphy, 93 Mich. 41. New Jersey. Of what judicial notice will be taken. — Judicial notice will be taken of the value of coins (State v. Stimson, 4 Zab. 9) ; of dis- tances (State v. Ferguson, 31 X. J. L. 289) ; of occupation of streets by horse railroads (Jersey City & B. Co. v. Jersey City & E. Co., 20 N. J. Eq. 61) ; of an estuary of the sea (Edwards v. Elliott, 21 Wall. 532); of cities [State v. Eelmes, 3 N. J. L. 600); of the waters of Raritan bay as tidal waters (Metzger v. Post, 44 N. J. L. 77) ; of the ordinary meaning of words (Smith v. Clayton. 29 N. J. L. 367) ; of the almanac, from which it appears that a certain date fell on a Sunday (Reed v. Wilson, 41 N. J. L. 29); of the Constitution of another State (Curtis v. Martin, Pen. 399. See Chap. VII.] THE LAW OF EVIDENCE. 327 Print Works v. Lawrence, 3 Zab. 595) ; of the law merchant as a part of the common law (Reed v. Wilson, 41 N". J. L. 29) ; of the provisions of public acts of the Legislature (Newark v. Stout, 52 N. J. L. 35; Stephens, etc., Co. v. Central R. Co., 3:j X. J. L. 229; .Rader v. E7nio« YV/>., 39 X. J. L. 509, 43 N. J. L. 518) : of the fact that a wall near windows will materially diminish the supply of light and air (Ware v. Chew, 43 N. J. Eq. 493) ; that blowing a whistle is a customary railroad signal (Bit tie v. Railroad, 55 X. J. L. 615) ; of the fact that the return on safe investments has been diminishing (Collins v. Wardell, 63 X. J. Eq. 371). When the charter of a city is declared to be a public act, supple- ments thereto will also be judicially noticed. Stephens, etc., Co. v. Central R. Co., 33 N. J. L. 229; Hawthorne v. Hobokcn, 32 X. J. L. 172. Laws of other States. — Judicial notice of the printed statutes and decisions of other States. G. S. 189.', " Evidence," 22. 2:!. Of what judicial notice will not be taken.— Judicial notice will not be taken of the appointment of a justice of the peace (Stale v. Hutchinson, 5 Hal. 242. But see Campbell v. Dewick, 20 X. .1. Eq. 186); of the laws of other States and nations (Campion v. Kille, 14 N. J. Eq. 229. 15 X. .1. Eq. 470: Gondii v. Blackwell, 19 X. J. Eq. 193; Uhler v. Semple, 20 X. J. Eq. 288: Ball v. Franklmite Co., 32 N. J. L. 10*2) : of private acts of the Legislature (Bridge Co. v. Perdicaris. 29 X. J. L. 367; Black v. Canal Co., 24 X. J. Eq. 455, 480) ; of the seal on a diploma of the New Jersey Medical Society (Vaughn v. Hanlinson, 35 X. J. L. 79); of a custom of a board of freeholders (Morris v. Freeman, 1-1 X. J. L. 634). Ordinances of a subdepartment of a city will not he judicially noticed by the police justice of the city as a whole. State v. Tren- ton, 51 X. J. L. 495; Wright v. Trenton, 51 X. J. L. 497. A court is not required to notice judicially that bankruptcy pro- ceedings have been begun against a parly to a pending suit. Ester- brook v. Ahem, 30 X. J. Eq. 341. Maryland. Of what judicial notice will be taken. — The court will take ju- dicial notice of the public acts of the Legislature (Dai/ v. Day, 22 Md. 530; State v. Jarrett, 17 Md. 309; Brady v. State, 26 Md. 290; Toioson v. Havre de Grace, 6 H. & J. 47) ; of acts of Congress 328 A DIGEST OF [Paet II. (Eastwood v. Kennedy, 44 Md. 503) ; of the political relations of countries (Stewart v. Mcintosh, 4 H. & J. 233; ; of the regulations of the Land Office in relation to property (Hammond's Lessee v. Warfield, 2 H. & J. 151); of public local laws, as well as general (Slym&r v. State, 62 Md. 237) ; of facts of history (Wiry man v. Mactier, 1 G. & J. 150) ; of a private act of the Legislature when it affects the charter of a corporation which is a public law (Planters' Bank v. Bank of Alexandria, 10 G. & J. 346) ; of the calendar, including the days of the week upon which the days of the month fall (Railroad Co. v. Lehman, 56 Md. 209; Kilyour v. Miles, 6 G. &/J. 268; Ecker v. Bank, 64 Md. 292) ; of dies non ju- ridici, Sundays, Christmas, and the like (Sasscer v. Bank, 4 Md. 409) ; of the meaning of common expressions (Baltimore v. State, 15 Md. 376, 484) ; of the boundaries of the counties of the State (Acton v. State, 80 Md. 547). The difference between a faro table and a billiard table is of such notoriety that the court will take judicial notice of it. State v. Price, 12 G. & J. 200. Judicial notice will be taken of acts of the Legislature concerning the local affairs of counties and election districts. Higgins v. State, 64 Md. 419. An appellate court, in reviewing the judgment of an inferior court, does not take judicial notice of the latter's rules of prac- tice. Cherry v. Baker, 17 Md. 75. See Oliver v. Palmer, 11 G. & J. 426. The seal of a court of this State proves itself; but the seal of a court of a foreign country must be authenticated by evidence. De Sobry v. De Laistre, 2 H. & J. 191. Courts take judicial notice of acts of Congress of a public char- acter. Dickey v. Bank, 89 Md. 280. Judicial notice will be taken of a statute authorizing clerks of court to accept a certain corporation as sole surety on bonds. Miller v. Matthews, 87 Md. 464. Courts will take judicial notice of public statutes fixing the duties of public officers. Graham v. Harford Co.. 87 Md. 321. Courts take judicial notice of a usage of such universal prevalence that it has become part of the existing law. Insurance Co. v. Wil- son, 2 Md. 217. Of what judicial notice will not be taken. — The court will not take judicial notice of a private act of the Legislature {Whitcrofi Chap. VII.] THE LAW OF EVIDENCE. 329 v. Dorset/, 3 H. & McH. 357) ; of municipal ordinances (Bank v. Baltimore, 71 Md. 515; Shanfelter v. Baltimore, 80 Aid. 483; Field v. Malster, 88 Md. 691) ; of the character of the disease of glanders [State v. /'o.r, 79 Md. 514). The court cannot take judicial notice of the result of a loca; option election. Whitman v. State, 80 Md. 410. Laws of foreign countries must be proved as matters of fact. De Sobry v. De Laistre, 2 H. & J. 191; Baptiste v. De Volunbrun, 5 H. & J. 86. Pennsylvania. Of what judicial notice will be taken. — The courts will take ju- dicial notice of the agreement between Lord Baltimore and William Penn as to the boundary (Thomas v. Stigers, 5 Pa. 480) ; of a pub- lic local law (Van Swartow v. Corn., 24 Pa. 131) ; of the laws of a sister State for the purpose of ascertaining the faith and credit required to be given them by the United States Constitution (Ohio v. Hinchman, 27 Pa. 479) ; of the custom of merchants to charge interest on goods sold after six months (Koons v. Miller, 3 W. & S. 271; Watt v. Hoch, 25 Pa. 411) ; of the official character of a jus- tice of the peace (Hibbs v. Blair, 14 Pa. 413; Kilpatrick v. Com., 31 Pa. 198) ; that a local election has been held deciding adversely to license (Ranch v. Com., 78 Pa. 490) ; of the time the suit was begun (Withers v. Gillespy, 7 S. & R. 10) ; of the aldermen of Phila- delphia as public officers (Fox v. Com., 81 Pa. 511) ; of the official acts of a collector of internal revenue and his deputy (Lerch v. Snyder, 112 Pa. 161) ; of the corporate seal of a city (Duffey v. Presb. Congregation, 48 Pa. 46) ; of the division of counties into boroughs (Borough v. Brown, 11 Pa. Co. Ct. 272) ; of the distance between cities and the usual running time of trains between (Pearce v. Langfit, 101 Pa. 507) ; of the calendar and computation of time (Hautch v. Levan, 1 Woodw. Dec. 456; Wilson v. Van Leer, 127 Pa. 371. Appellate courts will take judicial notice of the persons who occupy the bench in inferior courts. Kilpatrick v. Com., 31 Pa. 198. The seal of the United States Circuit Court proves itself. Wil- liams v. Wilkes. 14 Pa. 228. Of what judicial notice will not be taken. — Judicial notice will not be taken of a private statute (Handy v. Railroad Co., 1 Phila. 330 A DIGEST OF [Part II. 31; Packer v. C'om'rs, 1 Pittsb. 249; Timlow v. Railroad Co., 99 Pa. 284) ; of a special act for the survey of a particular tract (Alle- gheny v. Nelson, 25 Pa. 332) ; of the charter of a bank (Clarion Nat. Bank v. Gruber, 87 Pa. 468) ; of the laws of sister States (Ripple v. Ripple, 1 Rawle, 386; Electric Co. v. Geiger, 147 Pa. 399). Article 59. as to proof of such facts. !No evidence of any fact of which the Court will take judicial notice need be given by the party alleging its existence; but the judge, upon being called upon to take judicial notice thereof, may, if he is unacquainted with such fact, refer to any person or to any document or book of reference for his satisfaction in relation thereto, or may refuse to take judicial notice thereof unless and until the party calling upon him to take such notice produces any such document or book of reference. 15 AMERICAN NOTE. General. Authorities. — McKelvey on Evidence, p. 36; 1 Taylor on Evi- dence ( Chamberlayne's 9th ed.), p. 2139; Wagner's Case, 61 Me. 178; Nix v. Redden, 149 U. S. 304; Vahle v. Brackenseik, 145 111. 236; Bowen v. Mo. Pac. R. Co., 118 Mo. 541; Hefferman v. Harvey, 41 W. Va. 766; Wilson v. Van Leer, 127 Pa. 372; State v. Clare, 5 la. 509 ; State v. Morris, 47 Conn. 179. Evidence is inadmissible of that of which courts take judicial notice. White v. Phcsnix Ins. Co., 83 Me. 279, 22 Atl. 167; Com. v. Marzynski, 149 Mass. 72, 21 N. E. 228. 15 Taylor (from Greenleaf), s. 21. E.g. a judge will refer in case of need to an almanac, or to a printed copy of the statutes, or write to the Foreign Office, to know whether a State has been recognised. Chap. VII.] THE LAW OF EVIDENCE. 331 Facts of which the courts take judicial notice need not be proved. Secrist v. Petty, 109 111. 188; Yahle v. Brackenseik, 145 111. 236. No evidence of facts judicially noticed. — Evidence is not to be admitted of facts judicially noticed. Rev. Stat., 1901, sec. 377; State ex rel. Brown v. Bailey, 16 Ind. 46; followed in Mattock v. Ind. & III. Cent. R. R. Co., 10 Ind. 176; State v. Downs, 14S Ind. 324; Ervin v. State, 150 Ind. 332; Grusenmayer v. City of Logansport, 76 Ind. 549, 552; Town of Albion v. Hetrick, 90 Ind. 545, 551; Pennsylvania Co. v. Horton, 132 Ind. 189, 194. The court may properly charge the jury that a certain day falls on Sunday. Swales v. Grubbs, 126 Ind. 106, 110. Not to be pleaded. — Matters judicially noticed are not to be pleaded. City of Logansport v. Wright, 25 Ind. 512; West v. Blake, 4 rdackf. 234. Judge informs himself. — The court informs itself as best it can of matters of which it is to take judicial notice. State ex rel. Brown v. Bailey, 16 Ind. 46; followed in Mattock v. Ind. & III. Cent R. R. Co., 16 Ind. 176. Maryland. Mode of ascertaining facts required to be judicinlly noticed. Boteler v. State, 8 Gill & J. 359; Legg v. Annapolis, 42 Md. 203; Strauss v. Heiss, 48 Md. 292. Pennsylvania. Authority. — Wilson v. Van Leer, 127 Pa. 372. Article 60. evidence need not be given of facts admitted. No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which they have admitted before the hearing and with reference thereto, or by their pleadings. 16 Provided that in a trial for felony the prisoner can make no admissions 16 R. S. C, O. XXXII. The fact that a document is admitted does not make it relevant and is not equivalent to putting it in evidence, per James, L. J., in Watson v. Rodwell, 1878, 11 Ch. Div. at p. 150. 332 A DIGEST OF [Past II. so as to dispense with proof, though a confession may be proved as against him, subject to the rules stated in Articles 21-24. 17 AMERICAN NOTE. General. Authorities. — 11 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 488; Gould on Pleading, chap. 3, sec. 168; Gulliver v. Fowler, 64 Conn. 556, 566; Waldron v. Waldron, 156 U. S. 361; McGowan v. McDonald, 111 Cal. 57; State v. Brooks, 99 Mo. 137; Atkinson v. Linden Co., 138 111. 187; Musselman v. Wise, 84 Ind. 248. A demurrer is not an admission if an issue of fact is subse- quently joined. State's Attorney v. Branford, 59 Conn. 402, 414. See, also, Tyler v. Waddingham, 58 Conn. 389. Where the defendant pleads in confession and avoidance, the plain- tiff is not required to prove a breach. Cotheal v. Talmadge, 1 E. D. Smith, 573. A party cannot offer evidence to controvert his admissions contained in the pleadings. Getty v. Hamlin, 46 Hun, 1. By demurrer facts sufficiently pleaded are admitted, but solely for the objects of the argument on the demurrer; a demurrer cannot be claimed as evidence of such facts when the case goes to trial upon the issue of fact. Gray v. Gray, 143 N. Y. 354. But see Cutler v. Wright, 22 X. Y. 472. A demurrer is not an admission if an issue of fact is subsequently joined. Gray v. Gray, 143 N. Y. 354. See Cutler v. Wright, 22 N. Y. 472. If a defendant claims that the plaintiff's bill of particulars admits his counterclaim, he must raise this point at the trial and object to evidence offered for the purpose of defeating such claim. Case v. Pharis, 106 N. Y. 114. An admission in an answer that a written lease sued on was made, together with a proving of his own signature by the subscribing wit- ness, cannot be objected to by the defendant on the ground of want of sufficient identification to be admissible. Hall v. Beston, 59 N. E. 1123, affirming 26 App. Div. 105, 49 N. Y. Supp. 811. " 1 Ph. Ev. 391, n. 6. In R. v. Thornhill, 1838, 8 C. & P., Lord Abinger acted upon this rule in a trial for perjury. Chap. VII.] THE LAW OF EVIDENCE. 333 Facts admitted in the pleadings need not be proved. Orange M. Co. v. Western Assur. Co., 118 111. 398; Fein v. Covenant Mut. Benefit Assn., 60 111. App. 275; Atkinson v. Linden Co., 138 111. 187; Grace v. Ohio Bldg. Assn., G3 111. App. 33!). One has no right to prove admitted facts. Cor., etc., Assn. v. Spies, 114 111. 467; La Minie v. Carley, 114 111. 198; Champaign v. Maguire, 56 111. App. 618. Parties may agree on the evidence. Bolton v. Johnson, 163 111. 234. Admissions in open court operate as estoppels. Hensoldt v. Peters- burg, 63 111. Ill; Stribling v. Prettyman, 57 111. 371. Facts admitted in an affidavit for a continuance cannot afterwards be denied. Supervisors of Fulton County v. M. & W. R. R. Co., 21 111. 368. Evidence need not be offered of facts proved by the other side. Hesterberg v. Clark, 166 111. 241. But an incidental remark by counsel in his opening statement is not such an admission as to do away with the necessity of evidence on the part of the other side. Lake Erie, etc., Co. v. Rooker, 13 Ind. App. 600. Facts of record. — Admissions in pleadings are conclusive. Colter v. Calloway, 68 Ind. 219; Plankroad Co. v. Stallcup, 62 Ind. 345; School Town v. Grant, 104 Ind. 168. Admissions on the trial are made part of the record by bills of ex- ceptions. Clem v. State, 31 Ind. 480. Where a case is submitted, the facts being agreed upon, there can be no recovery unless all of the facts are covered by the agreement. Brown v. Rogers, 61 Ind. 449. Facts admitted. — One cannot, by admitting a fact, exclude proof offered by the other side. Kimball, etc., Co. v. Vroman, 35 Mich. 310; John Hancock, etc., Co. v. Moore, 34 Mich. 41; Baumier v. Antiau, 79 Mich. 509; Decamp v. Scofield, 75 Mich. 449, 42 N. W. 962. New Jersey. Authorities. — Wills t. McKinncy, 30 N. J. Eq. 465; Warbassc v. Insurance Co., 42 N. J. L. 203; Schenck v. Schenck, 5 Hal. 276; Mitchell v. Mitchell, 26 N. J. Eq. 497; Truax v. Truax, Pen. 166; Bordine v. Combs, 3 Green, 412. Admission by counsel that a document is lost admits soeondary evidence without further evidence of loss. Culver v. Culver, 31 N, J. Eq. 448. 334 A DIGEST OF [Pabt II.. Testimony not allowed to disprove a fact admitted in the plead- ings. Evans v. Huffman, 5 N. J. Eq. 254. Admissions in open court dispense with the necessity of evidence. Marsh v. Mitchell, 26 N. J. Eq. 497. Maryland. Where the defense to an action on a contract under seal is pay- ment, no evidence of the execution of the contract need be offered. Zihlman v. Glass Co., 74 Md. 303. Where all the facts are admitted, the party has a right to have the jury instructed as to their verdict. Insurance Co. v. Evans, 9 Md. 1. Pennsylvania. The admission by the maker of a note that the signature is his- renders proof of the fact unnecessary. Williams v. Floyd, 11 Pa. 499. Chap. VIII.] THE LAW OF EVIDENCE. 335 CHAPTEK VIII. OF ORAL EVIDENCE. Article 61. proof of facts by oral evidence. All facts may be proved by oral evidence subject to the provisions as to the proof of documents contained in Chap- ters IX., X., XL, and XII. AMERICAN NOTE. General. The payment of a mortgage may be proved by parol. Mauzey v. Bowen, 8 Ind. 193; Cowgill v. Wooden, t Blackf. 332. However, parol evidence to establish a resulting trust must be received with great caution. Fausler v. Jones, 7 Ind. 277. Article 62.* oral evidence must be direct. Oral evidence must in all cases whatever be direct ; that is to say — If it refers to a fact alleged to have been seen, it must be the evidence of a witness who says he saw it; If it refers to a fact alleged to have been heard, it must be the evidence of a witness who says he heard it ; * See Note XXVII. 336 A DIGEST OF [Part II. If it refers to a fact alleged to have been perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner ; If it refers to an opinion, or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. AMERICAN NOTE. General. Authorities. — 12 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 488; also vol. 11, p. 536; Rea v. Harrington, 58 Vt. 181. A witness may give the impression if gained from facts person- ally perceived. Humphries v. Parker, 52 Me. 502; Leach v. Ban- crofts, 61 N. H. 411; Whitman v. Moreij, 63 N. H. 448, 457; Fiske v. Gowing, 61 N. H. 431; State v. Ward, 61 Vt. 153; Dexter v. Har- rison, 146 111. 169; Lovejoy v. Hoioe, 55 Minn. 353; Lait v. Hall, 71 Cal. 149; Devall's Exc'r v. Darby, 38 Pa. 56; Ala. South. R. Co. v. Hill, 93 Ala. 515. But not otherwise. Kingsbury v. Moses, 45 N. H. 222. Objects may be shown to the jury. State v. Ward, 61 Vt. 153; Louisville, etc., R. Co. v. Wood, 113 Ind. 544; Lanark v. Dougherty, 153 111. 163; Langworthy v. Green, 95 Mich. 93. The property in dispute may be inspected by the trier. McGar v. Bristol, 71 Conn. 652. The court, in its discretion, may prevent the exhibition to the jury of what would be indecent or offensive. Knowles v. Crampton, 55 Conn. 336. By statute, generally, the jury may, by order of court, be taken to view property in controversy. 1 Thompson on Trials, sec. 882, p. 168: Vane v. Evanston, 150 111. 616. A person may be exhibited to the jury. Com. v. Emmons, 98 Mass. 6 ; Hermann v. State, 73 Wis. 248. Contra, Louisville, etc., R. Co. v. Wood, 113 Ind. 544, 550. Photographs may be admissible evidence. Dyson v. N. Y., etc., R. R. Co., 57 Conn. 9; State v. Griswold, 67 Conn. 290; Com. v. Rob- €iiap. VIII.] THE LAW OF EVIDENCE. 337 ertson, 162 Mass. 90; Gilbert v. West End R. R. Co., 160 Mass. 403; Miller v. Louisville, etc., R. Co., 128 Ind. 16, 25 Am. St. Rep. 416; Kansas City, M. d B. R. R. Co. v. Smith, 90 Ala. 25, 24 Am. St. Rep. 753; Udderzook v. Com., 76 Pa. St. 340; White Seicing Machine Co. v. Gordon, 124 Ind. 495, 19 Am. St. Rep. 109. ' A photograph is secondary evidence. To admit it without proof of its correctness is error. The testimony of the photographer is not essential. That of any one with knowledge of the fact of its correctness is sufficient. McGar v. Bristol, 71 Conn. 655; Cunning- ham v. Fair Haven d Westville R. R. Co., 72 Conn. 251. The preliminary question of whether it is a correct representation is for the trial court and will not be reviewed. Van Houten v. Morse, 162 Mass. 414, 422, 44 Am. St. Rep. 373. A witness may probably be ordered to write his name in court where his signature is denied. Smith v. King, 62 Conn. 521. Conversations by telephone if the parties can recognize the voices of one another are admissible evidence. People v. Ward, 3 N. Y. Cr. 511; Murphy v. Jack, 142 N. Y. 215, 40 Am. St. Rep. 590, 36 N. E. 882; People v. McKane, 143 N. Y. 455, 457. A witness may give the impression if gained from facts personally received. Blake v. People, 73 N. Y. 586. But not otherwise. Mather v. Parsons, 32 Hun, 338. See Rickerson v. Hart Ins. Co., 149 N. Y. 307; Baylies v. Cockroft, 81 N. Y. 363; Mfrs. d Traders' Bank v. Koch, 105 N. Y. 630; Ward v. Kilpatrick, 85 N. Y. 413; Nicholay v. Unger, 80 N. Y. 54. A party may testify to the amount received by him upon a sale at auction; it is not absolutely necessary to call the auctioneer. Reck- nagel v. Le Cocq, 6 N. Y. St. R. 527, 26 Wkly. Dig. 241. Objects exhibited. — Objects may be shown to the jury. People v. Gonzalez, 35 N. Y. 49; King v. N. Y. C. R. Co., 72 N. Y. 607. Viewing premises. — The jury may view the premises in course of criminal trial. Code Cr. Pro., sec. 411. Photographs. — A photograph or drawing may be introduced in evidence if properly verified. Cowley v. People, 83 N. Y. 464, 38 Am. Rep. 464; People v. Johnson, 140 N. Y. 350; Alberti v. N. Y., L. E. d W. R. Co., 118 N. Y. 77. Compelling production of person for examination. — The court may compel the production of a person before the jury. Mulhado v. Brook- lyn, etc., R. Co., 30 N. Y. 370. 22 338 A DIGEST OF [Pabt II. Evidence unlawfully obtained. — Letters and papers if obtained un- lawfully are still admissible in evidence. Siebert v. People, 143 111. 571. Production of objects and persons. — Objects may be produced for the inspection of the jury. Springer v. Chicago, 135 111. 552, 561 ; A., T. d S. F. R. R. Co. v. Schneider, 127 111. 144, 149; Tudor I. W. v. Weber, 129 111. 535; Lanark v. Dougherty, 153 111. 163. By statute, generally, the jury may, by order of court, be taken to view property in controversy. Vane v. Evanston, 150 111. 616. An injured member may be shown to the jury. Grand Lodge v. Randolph, 186 111. 89, 57 N. E. 882, affirming 84 111. App. 220; Swift v. O'Neil, 58 N. E. 416, affirming 88 111. App. 162; Lanark v. Dough- erty, 153 111. 163; Chicago St. Ry. Co. v. Grenell, 90 111. App. 30. In injury cases, the plaintiff may strip in the presence of the jury. C. d A. R. R. Co. v. Clausen, 70 111. App. 550. One may be allowed to exhibit to the jury a rupture, in the dis- cretion of the court. C. d A. R. R. Co. v. Clausen, 173 111. 100, 50 N. E. 680, affirming 70 111. App. 550. An eye which has been removed, or a piece of bone, may be ex- hibited to the jury. Seltzer v. Saxton, 71 111. App. 229. The exhibition of an injury to a jury is within the discretion of the court. C. d A. R. R. Co. v. Clausen, 70 111. App. 550. The person injured may show the jury to what extent he can move the injured arm. Prichard v. Moore, 75 111. App. 553. It is within the discretion of the court to allow the portion of the body injured to be exhibited to the jury. Jefferson Ice Co. v. Zwicokoski, 78 111. App. 646. Child in bastardy. — In bastardy proceedings, the child cannot be shown in evidence to show resemblance to the putative father. Rob- nett v. People, 16 111. App. 300. Experiments. — A fact which illustrates by way of experiment is admissible. C. d N. W. R. R. Co. v. Hart, 22 111. App. 207 ; J. d E. Ry. Co. v. Reese, 70 111. App. 463. Chemical experiments to determine the explosive character of dust are admissible, but should be admitted with caution. Shufeldt v. Bearing, 59 111. App. 341. Chemical experiments conducted under the same conditions are admissible. Fein v. C. M. Benefit Assn., 60 111. App. 274. Experiments may be allowed with a model before the jury. Penn- sylvania Coal Co. v. Kelly, 156 111. 9. Chap. VIII.] THE LAW OF EVIDENCE. 339 Photographs. — Photographs may be admissible evidence. Miller v. Louisville, etc., R. Co., 128 Ind. 16, 25 Am. St. Rep. 416; White Setting Machine Co. v. Gordon, 124 Ind. 495. A photograph of a person or thing must be shown by the testi- mony of witnesses to have been taken at a proper time to reproduce a correct appearance or likeness. White Sewing Machine Co. v. Gor- don, 124 Ind. 495. Evidence of inspection may be considered. — An injured member may be exhibited to the jury. Indiana Co. v. Parker, 100 Ind. 181; Louisville, etc., Ry. Co. v. Falvey, 104 Ind. 409, 422 ; Louisville, etc., Ry. Co. v. Wood, 113 Ind. 544, 548; Hess v. Lowrey, 122 Ind. 225, 232. So witness's injuries in connection with his testimony. Brennan v. Hutchinson, 15 Ind. App. 639; Citizens, etc., R. Co. v. Willoeby, 134 Ind. 563. Objects may be shown to the jury. Louisville, etc., R. Co. v. Wood, 113 Ind. 544; Taylor v. McGrath, 9 Ind. App. 30; Thrawley v. State t 153 Ind. 275 (skull). Inspection of documentary evidence. — In order to compel the pro- duction of writings in the hands of a party an order is required. Whitman v. Weller, 39 Ind. 515; Duke v. Brown, 18 Ind. 111. The propriety of making such an order depends upon the aver- ments of the pleadings and issues joined, and, unless from the offered evidence iiself a sufficient reason for excluding it appears, it is not error to admit it over general objections. Wabash Valley, etc. v. James, 8 Ind. App. 449, 453. Compare Houser v. State ex rel., 93 Ind. 228, 229. The other papers in a case are already before the court, but may be formally introduced in evidence. Bell v. Pavey, 7 Ind. App. 19; Manor v. Board, etc., 137 Ind. 367. On the question of paternity a child cannot be submitted to the jury to show resemblance. Reitz v. State, 33 Ind. 187. New Jersey. Authorities. — Witness must state facts not inferences. Berck- mans v. Berckmans, 16 N. J. Eq. 122. The best evidence possible must be produced. Hoffman v. Rod- man, 39 N. J. L. 252. Direct evidence not required to prove adultery; circumstantial evidence will be sufficient if the opportunity and the will to commit 340 A DIGEST OF [Vast II. the crime are established. Berckmans v. Berckmans, 16 N. J. Eq. 122, 17 N. J. Eq. 453; Day v. Day, 4 N. J. Eq. 444; Adams v. Adams, 17 X. J. Eq. 324. Photographs. — Photographs are admissible when the trial judge has been satisfied that they are correct representations. Goldsboro v. Central R. Co., 60 N. J. L. 49. Examination of person. — Physical examination of a plaintiff in an action for damages allowed under statute. McGovem v. Hope, 63 N. J. L. 77. Jury allowed to compare putative father and child to note resem- blance. Gaunt v. State, 50 N. J. L. 490. A witness or a party may be required to stand up to be identified. Rice v. Rice, 47 N. J. Eq. 559. View. — Inspection of chattels or premises by the jury or by wit- nesses. G. S. 1895, " Evidence." 24. Maryland. Authorities. — Where the intention of a party is material he may himself testify as to what it was. Phelps v. Georges Creek Co., 60 Md. 536. In testifying as to a conversation, the witness must, give either the language or its substance ; he cannot give his impression. Elbia v. Dean, 33 Md. 135. The letter of a party excluded because the writer was present and could testify directly as to the matter in question. Bland v. Doivling, 9 G. & J. 19. A witness may state the result of his examination of numerous documents. Blum v. State, 94 Md. 375. In prosecution for rape the crime cannot be proved by evidence of declarations of the prosecutrix made after the event. Parker v. State, 67 Md. 329. Photographs. — Photographs are admissible when shown to be cor- rect. Dorsey v. Habersack, 84 Md. 117. A sketch or painting of the scene of an accident is admissible. Commissioners of Harford v. Wise, 71 Md. 43. Exhibiting objects to the jury. — Child may be offered as an ex- hibit to prove resemblance to its putative father. Jones v. Jones, 45 Md. 144. To prove that defendant injured certain rails and shingles, the plaintiff cannot introduce some of the rails and shingles, but is Chap. VIII.] THE LAW OF EVIDENCE. 341 restricted to testimony of witnesses who have made examination. Jacobs v. Davis, 34 Md. 204. During the trial parties may submit documents themselves for the inspection of the jury, but not afterward. Moore v. McDonald, 68 Md. 321. View by the jury. — With the consent of both parties, the jury may be taken to view the scene of an accident. Arnold v. Green, 95 Md. 217. Pennsylvania. Authorities. — A witness may not testify as to what he would have done under other circumstances, kiican v. Scott, 11 fc>. & K. 155. A witness cannot testify as to a conclusion which it is the province of the jury to draw. Belter v. McJunkin, l'J4 Pa. 301; Smith v. (John, 170 Pa. 132. A witness may not testify as to inferences he drew from certain- facts. Given v. Albert, 5 W. & S. 333. A witness may give the impression if gained from facts person- ally perceived. Devall's Exr. v. Darby, 38 Pa. 56. A belief not founded on knowledge is no evidence. Carmalt v. Post, 8 Watts, 406. Evidence obtained by the prosecutor's having body of deceased exhumed is admissible to prove murder. Com. v. Grether, 204 Pa. 203. Any one who saw the fact may testify, though one not called might be a better witness than the one testifying. Richardson v. Milburn, 17 Md. 67. The oral testimony of one witness is admissible, though the testi- mony of others not called might be stronger. Western Union Co. v. Stevenson, 128 Pa. 442; Canfield v. Johnson, 144 Pa. 61. Undue influence may be shown by any lawful evidence, direct or indirect. Robinson v. Robinson, 203 Pa. 400. Witness testifying in a foreign language. Com. v. Greason, 204 Pa. 64. Photographs. — Photographs are admissible after preliminary proof of care and accuracy in taking them. Beardslee v. Columbia Twp., 188 Pa. 496. Photograph admissible on question of size. Com. v. Keller, 191 Pa. 122. 342 A DIGEST OF [Pabt II. Photographs and portraits are admissible to prove identity. Udderzook v. Com., 76 Pa. 340; Com. v. Connors, 156 Pa. 147; Bryant's Estate, 170 Pa. 309. Demonstrative evidence.-*- Jury may infer minority from looking at the person. Snodgrass v. Bradley, 2 Grant, 43. A specimen of paving stone is admissible to show quality. Philadelphia v. Rule, 93 Pa. 15. Defendant cannot be compelled to make a foot print for com- parison. Stokes v. State, 8 Leg. Gaz. 100. To prove malpractice, an injured limb was exhibited to the jury. Fowler v. Sergeant, 1 Grant, 355. A plat made by an engineer from his notes of survey is admis- sible. Bassett v. Pcnna. Co., 201 Pa. 226. Chap. IX.] THE LAW OF EVIDENCE. 343 CHAPTER IX. OF DOCUMENTARY EVIDENCE— PRIMARY AND SECONDARY, AND ATTESTED DOCUMENTS. Akticle 63. proof of contents of documents. The contents of documents may be proved either by pri- mary or by secondary evidence. AMERICAN NOTE. General. Where the production of primary evidence is in the power of a party, secondary evidence cannot be given. New York Car Oil Co. v. Richmond, 6 Bosw. 213, 19 How. Pr. 505. Even in reduction of dam- ages. Coleman v. Southivick, 9 Johns. 45; Hasbrouck v. Baker, 10 Johns. 248. And see Dygert v. Coppernoll, 13 Johns. 210; Brewster V. Countryman, 12 Wend. 446. Where part of a document is offered, the other side can call for the remainder of it if it relates to the same subject-matter. Imperial Hotel Co. v. H. B. Claflin Co., 55 111. App. 338. The objection to the admission of a writing in evidence must be made at the trial. Lake v. Broicn, 116 111. 83, 87. Article 64. primary evidence. Primary evidence means the document itself produced for the inspection of the Court, accompanied by the pro- duction of an attesting witness in cases in which an attesting 344 A DIGEST OF [Part II. witness must be called under the provisions of Articles 66 and 67 ; or an admission of its contents proved to have been made by a person whose admissions are relevant under Articles 15-20. 1 Where a document is executed in several parts, each part is primary evidence of the document : Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. 2 Where a number of documents are all made by printing, lithography, or photography, or any other process of such a nature as in itself to secure uniformity in the copies, each is primary evidence of the contents of the rest; 3 but where they are all copies of a common original, no one of them is primary evidence of the contents of the original. 4 AMERICAN NOTE. General. Authorities. — Wharton on Evidence, sees. 92, 1091, 1092; I Greenleaf on Evidence (15th ed.), sees. 96, 203. First paragraph of text. Morey v. Hoyt, 62 Conn. 542, 556, 557, 26 Atl. 127 (quoting this article with approval) ; Edgerton v. Edger- ton, 8 Conn. 6; Davis v. Eingsley, 13 Conn. 285. The recorded vote of the directors of a corporation is the only i Slatterie v. Pooley, 1840, 6 M. & W. 664. 2 Ree d. West v. Davis, 1806, 7 Ea. 362. B.R. v. Watson, 1817, 2 Star. 129. This case was decided long be- fore the invention of photography; but the judgments delivered by the Court (Ellenborough, C. J., and Abbott. Bayley, and Holroyd„ JJ. ) establish the principle stated in the text. 4 Xodin v. Murray, 1812, 3 Camp. 227. Chap. IX.] THE LAW OF EVIDENCE. 345 proper evidence of their acts. If it has been lost, secondary evi- dence may be introduced. Eurd v. Hotchkiss, 72 Conn. 480. An executed contract, signed by one party only, is admissible in evidence against the party not signing in a suit by a stranger. Watson v. New Milford, 72 Conn. 566. A paper purporting to be signed by a party is not admissible against him without some proof of the genuineness of the signa- ture. Neil v. Miller, 2 Root (Conn.), 117; Canfield v. Squire, 2 Root (Conn.), 300. Admissions. — The contents of an instrument may be proved by admissions. Blackington v. Rockland, 66 Me. 332 ; Loomis v. Wad- hams, 8 Gray (Mass.), 557; Smith v. Palmer, 6 Cush. (Mass.) 513; Crichton v. Smith, 34 Md. 42, 47 ; Edger v. Richardson, 33 0. St. 581 ; Taylor v. Peck, 21 Gratt. 11 ; Edivards v. Tracy, 62 Pa. St. 374; Hoef- ling v. Eambleton, 84 Tex. 517. Contra, Cumberland Ins. Co. v. Cil- tinan, 48 N. J. L. 495. Telegrams. — The message received has been held primary evidence of that sent. Nickerson v. Spindell, 164 Mass. 28; Durkee v. Vt. R. Co., 29 Vt. 127; Eowley v. Whipple, 48 N. H. 487; Ayer v. Tel. Co., 79 Me. 493, 500; Saveland v. Qreen, 40 Wis. 431 ; Anheuser-Busch Assn. v. Eutmacher, 127 111. 652 ; Magie v. Herman, 50 Minn. 424. Meaning of primary evidence. — Sustaining the text. McCormick v. Mulvihill, 1 Hilt. 131; Baird v. Baird, 81 Hun, 300; affirmed in 145 N. Y. 659; Mengis v. Fifth Avenue By. Co., 81 Hun, 480, 63 N. Y. St. R. 192; Collins v. Shaffer, 78 Hun, 512, 61 N. Y. St. R. 222. Where the by-laws of the defendant were identified by an original corporator and trustee, and were signed by all of the incorporators hut two, which signatures were proved, and purported to be the de- fendant's by-laws, this evidence of authenticity was deemed sufficient proof thereof. Church of St. Stanislaus v. Verein, 58 N. E. 1086, 164 N. Y. 606. Where in an action for libel a previous publication by the plain- tiff was offered as evidence, but an objection was taken to it, the judge may require that it be first submitted to him for his perusal, before allowing it to be read in the hearing of the jury. Oould v. Weed, 12 Wend. 12. The adverse party cannot compel a party reading a portion of a statement or correspondence to read all of it; if it is material and he desires it, the adverse party can himself read it. Parmenter v. Boston, Hoosac Tunnel B. B. Co., 37 Hun, 354. 34G A DIGEST OF [Pabt II. Document in several parts. — Each duplicate original is primary evidence. Lewis v. Payn, 8 Cow. 71; Hubbard v. Russell, 24 Barb. 404; Martin v. Martin, 1 Misc. Rep. 181, 48 N. Y. St. R. 689. See Grossman v. Grossman, 95 X. Y. 145. Document in counterpart. — Nicoll v. Burke, 8 Abb. X. C. 213. Instruments are not now usually executed in counterpart. Roland v. Pinckney, 8 Misc. Hep. 458. Documents printed, lithographed, photographed, etc., uniformly. — Buff v. Bennett, 4 Sandf. 120. Copies of a common original. — Letter-press copies of correspond- ence are secondary evidence only. Foot v. Bently, 44 N. Y. 166, 4 Am. Rep. 052. Counterpart. — Weaver v. Shipley, 127 Ind. 526, 535 (lease). New Jersey. Authorities. — The original document is admissible even though certified copies are also admissible. Oram v. Young, 3 Harr. 57. A judgment must be proved by the original entry. Brookfield v. Winans, 7 Hal. 338. When documents that are admissible are produced and referred to by witnesses they may become evidence without any formal offer. Convery v. Conger, 53 N. J. L. 658 ; reversing 8. C., 53 N. J. L. 468. The record of an instrument is primary evidence only when made such by statute. Fox v. Lambson, 3 Hal. 275. Admissions of a party are not admissible to prove contents of a document except when secondary evidence is admissible. Cumber- land Ins. Co. v. Giltinan, 48 N. J. L. 495. Maryland. Authorities. — An original telegram is the one sent to be trans- mitted, not the one received. Smith v. Easton, 54 Md. 138. An original deed is not admissible without proof of its execution. Gambrill v. Schooley, 95 Md. 260. Duplicates. — When a contract has been executed in duplicate, each copy is primary evidence. Totten v. Bucy. 57 Md. 446. Admissions. — The contents of an instrument may be proved by admissions. Crichton v. Smith, 34 Md. 42, 47. Pennsylvania. Authorities. — A record of a court is primary evidence. Eisenhart v. Slaymalcer, 14 S. & R. 153; Garrigues v. Harris, 17 Pa. 344. Chap. IX.] THE LAW OF EVIDENCE. 347 The record of a judgment is admissible to prove a fact stated in the declaration. Numbers v. Shelly, 78 Pa. 42G. Docket entries are not admissible to prove issuance, service, and return of a writ. The writ itself is the primary evidence. Vincent v. Huff, 4 S. & R. 298. Irish statutes proved by a printed copy. Jones V. Maffet, 5 S. & R. 523. The statute-book is evidence of private and public laws. Biddis v. James, 6 Binn. 321; Gray v. Navigation Co., 2 W. & S. 156. Unstamped check allowed in evidence when not offered to sustain the plaintiff's claim or the defendant's defense. Bryan v. Bank, 205 Pa. 7. Ownership of personal property may be proved by parol, though the sale is evidenced by a writing. Gallagher v. Assurance Corp., 149 Pa. 25. Counterparts. — A duplicate original is primary evidence. Cobb v. Burns, 61 Pa. 278. A copy of a lost deed is not admissible if there be a counterpart in existence. Kern v. Swope, 2 Watts, 75. Admissions. — The contents of an instrument may be proved by admissions. Edwards v. Tracy, 62 Pa. 374. Statute. — Courts may compel the production of books and papers. Pepper & Lewis' Digest of Laws, " Evidence," sec. 6. Article 65. proof of documents by primary evidence. The contents of documents must, except in the cases mentioned in Article 71, be proved by primary evidence: and in the cases mentioned in Article 60 by calling an attest- ing witness. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 82 et seq.; MeKelvey on Evidence, p. 342 et seq.; Kelsey v. Hanmer, 18 Conn. 317; Waller v. Eleventh Sch. Dist., 22 Conn. 333; Elwell v. Mersick, 50 Conn. 276; Richards v. Stewart, 2 Day (Conn.), 328; Hurd v. 34 S A DIGEST OF [Part II. Hotchkiss, 72 Conn. 480; Topping v. Bickford, 4 Allen (Mass.), 120; Binney v. Russell, 109 Mass. 55 ; Amherst Bank v. Conlcey, 4 Mete. (Mass.) 459; Woods v. Burke, 67 Mich. C74; Martin v. McCray, 171 Pa. St. 575. See, however, Huston v. Ticknor, 99 Pa. St. 231. Where an instrument, having no subscribing witnesses, comes from the proper custody, proof of the handwriting of the party is suffi- cient; the presumption then is that it was executed at the time of its date. St. John v. American Mutual Life Insurance Co., 2 Duer, 419. Proof of deeds, leases, etc. — Johnston v. Granger, 17 Misc. Rep. 54, 39 X. Y. Supp. 848 ; Broxcn v. Sullivan, 1 Misc. Rep. 161, 48 N. Y. St. R. 685; Drummond v. Fisher, 43 X. Y. St. R. 135, 17 X. Y. Supp. 867. Proof of insurance policies, etc. — Read v. Metropolitan Life Ins. Co., 17 Misc. Rep. 307, 40 X. Y. Supp. 374; Porter v. Valentine, 18 Misc. Rep. 213, 41 X. Y. Supp. 507. Written laws.— The written laws of other countries can be proved only by written evidence, but their interpretation may be shown by expert evidence. Bierhous v. Western Union Tel. Co., 8 Ind. App. 246. As to city records, see Burns' Stat., sec. 3503. The written laws of other States cannot be proved by oral evidence. Comparlt v. Jemegan, 5 Blackf. 375 ; Line v. Mack, 14 Ind. 330. Books of account. — When original books of account are accessible, parol proof of the contents is inadmissible. Kane v. State, 71 Ind. 559. Evidence before coroner. — Evidence before a coroner reduced to writing cannot be proved by oral evidence. Robinson v. State, 87 Ind. 292. Records. — The contents of court and other public records must be shown by the records themselves. Bible v. Voris, 141 Ind. 569; Hamilton v. Shoaff, 99 Ind. 63, 66; Williams v. Jones, 12 Ind. 561; Met-cr v. State, 39 Ind. 596; Bible v. Boris, 141 Ind. 569; Doe dem. Sutton v. Reagan, 5 Blackf. 217; Mills v. Barnes, 4 Blackf. 438 (of justice) ; Beatty v. Gates, 4 Ind. 154 (to prove judgment) ; Piersoll v. Craig, 22 Ind. 394 (same) ; Cline v. Gibson, 23 Ind. 11. By the statute (Rev. Stat., 1843, 518) the sale bill is the best evidence of an administrator's sale. Meek v. Spencer, 8 Ind. 118. The proceedings of courts of other States are to be proved by their records. Hamilton v. Shoaff, 99 Ind. 63; Teter v. Teter, 88 Ind. 494. Chap. IX.] THE LAW OF EVIDENCE. 349 Copies of the records of Federal courts in Indiana may be authenti- cated by the keeper of such records. Bradford v. Russell, 79 Ind. 64. The record is the best evidence of admissions by pleading in a prior action. Colborn v. Fry, 23 Ind. App. 485. Disagreement between original and copy.- — Where the transcript of a judgment and the judgment itself do not agree, the judgment itself being the primary evidence controls. Robinso7i v. Snyder, 97 Ind. 56, 59; St rat ton v. Lockhart, 1 Ind. App. 380, 384. Award. — Burke v. Voyles, 5 Blackf. 190; Williams v. Dewitt, 12 Ind. 309. Under section 454, Rev. Stat., 1894, instruments recording a sale cannot be introduced in evidence unless sealed. Conkey v. Conder, 134 Ind. 441. Harmless error. — If the original is also in evidence the admission of a copy also is a harmless error. Burk v. Andis, 98 Ind. 59, 65. Original must be in writing. — Morrison v. King, 4 Blackf. 125.. Dedication of a street may be shown by parol. Wood v. Mansell, 3 Blackf. 125. Parol evidence is admissible to prove a verdict was rendered in a suit. Abrams v. Smith, 8 Blackf. 95. Railroad rules may be proved by parol where it does not appear that they are in writing. Pittsburgh, etc., R. R. Co. v. Martin, 157 Ind. 216, 61 X. E. 229. The common law of another State and the customs prevailing there may be proved by oral evidence. Heberd v. Myers, 5 Ind. 94. New Jersey. Authorities. — Parol evidence of the contents of a writing not admissible. Sterling v. Potts, 5 X. J. L. 773. A judgment can be proved only by the judgment itself. Brook- field v. Winans, 7 Hal. 338. Resolution of a city council cannot be proved by parol. State V. McQrath, 44 X. J. L. 227. Contents of a document cannot be proved even by admissions of the defendant who executed it. while its absence is unaccounted for. Fire Ins. Co. v. Oiltinan, 4S X. J. L. 495. The only competent evidence of an assessment is the assessment itself. Hopper v. Malleson, 16 X. J. Eq. 382. 350 THE LAW OF EVIDENCE. [Chap. IX. Maryland. Authorities. — Parol evidence of the contents of a writing not admissible. Mullilcen v. Boyce, 1 Gill, 00; Marshall v. Haney, $ Gill, 251 j Dunuock v. Dunnock } 3 Md. Ch. 140; Morrison v. Welti/, 18 Md. 169. By agreement, short abstracts of foreign records are receivable. Bowman v. Franklin his. Co., 40 Md. 620. The fact that an executor's powers have been revoked can be proved only by the court record. Wright v. Gilbert, 51 Md. 146. A grant of letters testamentary may be proved by parol evidence in case it was the practice of the Orphans' Court to make no record. Avon Coal Co. v. McCulloh, 59 Md. 403. If secondary evidence is introduced without objection it is as effectual as primary. Marfield v. Davidson, 8 G. & J. 209. Sealed instruments. Clarke v. State, 8 G. & J. 111. Pennsylvania. Authorities. — Martin v. McCray, 171 Pa. 575; Huston v. Tickno", 99 Pa. 231. Certificate of an architect that plumbing work was according to contract must be proved by the document itself. Brown v. Burr, 160 Pa. 458. An order of court granting a new trial can be proved only by the record. Wentz v. Lowe, 3 Atl. 878. A discharge in insolvency can be proved only by the record. Loughry v. McCullough, 1 Pa. 503. An execution can be proved only by the record. Snyder v. Snyder, 6 Binn. 483. And see Bank v. Fordyce, 1 Pa. 454. The terms of a written contract cannot be proved by parol. Bar- nett v. Barnett, 16 S. & R. 51. Parol evidence of the contents of a writing not admissible. Campbell v. Wallace. 3 Yeates, 271; Brown v. Day, 78 Pa. 129. Contents of books of account cannot be proved by parol. Ren- show v. Proctor. 16 Wkly. Notes Cas. 495. The assessment of property for taxes must be proved by the assess- ment itself. Stark v. Shupp. 112 Pa. 395. The appointment of the guardian of a minor may be proved with- out producing the record of the Orphans' Court. Appeal of Fink, 101 Pa. 74. Chap. IX.] THE LAW OF EVIDENCE. 361 Printed copies of statutes. — The contents of statutes of Pennsyl- vania may be proved by copies printed by authority. Biddis v. James, 6 Binn. 321; Gray v. Navigation Co., 2 W. & S. 15G. So also may the statutes of other States be proved. Thompson v. Musser, 1 Dall. 458 ; Mullen v. Morris, 2 Pa. 85 ; Tenant v. Tenant, 110 Pa. 478. Deeds. — Copy of a deed not admissible. Lodge v. Berrier, 16 S. & R. 296; Rank v. Shewey, 4 Watts, 218. Article 66.* proof of execution of document required by law to be attested. If a document is required by law to be attested, it may not be used as evidence (except in the cases mentioned or referred to in the next article) if there be an attesting witness alive, sane, and subject to the process of the Court, until one attesting witness at least has been called for the purpose of proving its execution. If it be shown that no such attesting witness is alive or can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. The rule extends to cases in which — the document has been burnt 5 or cancelled ; 6 the subscribing witness is blind ; 7 * See Note XXVIII. Gillies v. Smither, 1819, 2 Star. R. 528. e Breton v. Cope, 1791, Pea. R. 43. t Cronk v. Frith, 1839, 9 C. & P. 197. 352 A DIGEST OF [Pabt II. the person by whom the document was executed is pre- pared to testify to his own execution of it ; 8 the person seeking to prove the document is prepared to prove an admission of its execution by the person who executed it, even if he is a party to the cause, 9 unless such admission be made for the purpose of, or has reference to, the cause. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 569 et seq.; McKelvey on Evidence, p. 351 et seq.; 3 Taylor on Evidence (American edition of 1897), p. 1229 et seq. First paragraph of text. Foye v. Leighton, 24 N. H. 29; Wood- man v. Segar, 25 Me. 90; Harding v. Cragie, 8 Vt. 501; Whitte- more v. Brooks, 1 Me. 57; Gage v. Wilson, 17 Me. 378; International, etc., R. Co. v. McRae, 82 Tex. 614; Brigham v. Palmer, 3 Allen (Mass.), 450; Barry v. Ryan, 4 Gray (Mass.), 523. The rules of this article are not abrogated by statutes making parties competent witnesses. Brigham v. Palmer, 3 Allen (Mass.), 450. Other competent evidence is admissible if all the attesting wit- nesses are dead, incompetent, or beyond the reach of process. Homer v. Wallis, 11 Mass. 309; Valentine v. Piper, 22 Pick. (Mass.) 85; Haynes v. Rutter, 24 Pick. (Mass.) 242; Amherst Bank v. Root, 2 Mete. (Mass.) 522; Packard v. Dunsmore, 11 Cush. (Mass.) 282; Tyng v. B. rf M. R. R. Co., 12 Cush. (Mass.) 277; Brigham v. Palmer, 3 Allen (Mass.), 450. So if the attesting witness fail to prove the document. Whitaker v. Salisbury, 15 Pick. (Mass.) 534. See, also, Russell v. Coffin, 8 Pick. (Mass.) 143; Robinson v. Brennan, 115 Mass. 582. In a suit for fraud, in giving an invalid deed, the document may be proved without calling the attesting witnesses. Skinner v. Brigham, 126 Mass. 132. 8 R. v. Harringworth, 1815, 4 M. & S. at p. 353. 9 Call v. Dunning, 1803, 4 Ea. 53. See, too, Whyman v. Garth, 1853, 8 Ex. S03: Randall v. Lynch, 1810, 2 Camp. 357. Chap. IX.] THE LAW OF EVIDENCE. 353 Witness not found. — If no competent attesting witness can be found, signatures may be proved. Woodman v. Segar, 25 Me. 90. Absence of witness. — Whether the absence from the State of the attesting witnesses of a bond is sufficient to admit proof of their handwriting, qucere. Hempstead v. Bird, 2 Day (Conn.), 293. The signature of an attesting witness, who is absent from the State, may be proved in the same way as though dead. Trustees of Charities v. Connolly, 157 Mass. 272; Hanrick v. Patrick, 119 U. S. 156; Galla- gher v. London Assur. Corp., 149 Pa. St. 25; Ballinger v. Davis, 29 la. 512; N. J. Zinc Co. v. Lehigh Zinc Co., 59 N. J. L. ,189. In some States it is enough to prove the handwriting of the party alone. Jones v. Roberts, 65 Me. 273; Cox v. Davis, 17 Ala. 714; Landers v. Bolton, 26 Cal. 393; Snider v. Burks, 84 Ala. 53, 66 ( either or both ) . Or of one witness. McKelvey on Evidence, p. 353; Stebbins v. Duncan, 108 U. S. 32. One witness enough. — White v. Wood, 8 Cush. (Mass.) 413; Gelott v. Goodspeed, 8 Cush. (Mass.) 411; Melcher v. Flanders, 40 N. H. 139. The testimony to the execution of a deed of one of two subscrib- ing witnesses makes prima facie proof of its execution. 0' Sullivan v. Overton, 56 Conn. 105, 106. The court, in its discretion, may call for the testimony of all the attesting witnesses. Burke v. Miller, 7 Cush. (Mass.) 547. See, also, Clark v. Houghton, 12 Gray (Mass.), 38. Admissions. — Last paragraph of text. Kenney v. Flynn, 2 R. I. 319; Blake v. Savcin, 10 Allen (Mass.), 340; Jones v. Henry, 84 N. C. 320 ; Warner v. B. d 0. R. R. Co., 31 O. St. 265 ; Richmond, etc., R. Co. v. Jones, 92 Ala. 218. Compare Eingtcood v. Bethlehem, 13 N. J. L. 221 : Frost v. Deering, 21 Me. 56. Lost document. — If a document is lost, the rule is the same as that stated in the text with reference to burnt documents. Kimball v. Morrell, 4 Me. 368; Wells v. Jackson Iron Co., 48 N. H. 491 ; Por- ter v. Wilson, 13 Pa. St. 641; Kelsey v. Hanmer, 18 Conn. 311. Party prepared to testify to execution. — Sustaining text. Barry v. Ryan, 4 Gray (Mass.), 523; Flitcher v. Perry, 97 Ga. 368; Hess v. Griggs, 43 Mich. 397 : Russell v. Walker, 73 Ala. 315. Contra, Bowl- ing v. Hax, 55 Mo. 446 ; Garrett v. Haushue, 53 0. St. 482. The disqualification, by his own act, of a subscribing witness to a note will prevent him from establishing its execution. Edward* v. Perry, 21 Barb. 600. 23 354 A DIGEST OF [Pabt II. An erasure in a deed need not be proved by the attesting witness. Penny v. Corwithe, 18 Johns. 499. First paragraph of text. — Henry v. Bishop, 2 Wend. 575 ; Bond v. Root, 18 Johns. 60; King v. Smith, 21 Barb. 158. Witness dead or insane. — The signature of a witness who is dead or insane can be established as his by proof of his handwriting. McKay v. Lasher, 121 N. Y. 477; Mott v. Doughty, 1 Johns. Cas. 230; Woodruff v. Cody, 9 Cow. 140; Van Rensselaer v. Jones, 2 Barb. 643. See, also, Fox v. Reil, 3 John. 447. Attested instruments. — The evidence of an attesting witness is not the only admissible evidence of execution. It is, however, the best evidence. Pence v. Makepeace, 65 Ind. 345. As to attesting witnesses, see Helms v. Kearns, 40 Ind. 124; Booker v. Bowles, 2 Blackf. 90; Jones v. Cooprider, 1 Blackf. 47. Papers executed by illiterate persons need not on that account be attested. Shank v. Butsch, 28 Ind. 19. New Jersey. Authorities. — Williams v. Davis, 2 Pen. 259; Corlies v. Van 'Note, 16 N. J. L. 324. Proof of signature of attesting witness establishes prima facie the due execution, but it is customary to prove the signature of the party to the instrument also. Servis v. Nelson, 14 N. J. Eq. 94. The absence of the attesting witness must be accounted for before other proof can be made. Williams v. Davis, Pen. 277 ; Corlies v. Van Note, 1 Harr. 324; Anonymous, 1 Harr. 355. Deed must be proved by the attesting witness. Williamson v. Wright, Pen. 984. Absent witness. — Handwriting may be proved if the witness is beyond the reach of process. Lorrillard v. Van Houten, 10 N. J. L. 270; Van Doren v. Van Doren, 3 N. J. L. 575. The signature of an attesting witness, who is absent from the State, may be proved in the same way as though dead. New Jersey Zinc Co. v. Lehigh Zinc Co., 59 N. J. L. 189. Witness dead. — Glover v. Armstrong, 15 N. J. L. 186; Newoold v. Lamb, 2 South. 449. Admissions. — Last paragraph of text. Kingwood v. Bethlehem, 13 N. J. L. 221. An admission by a party that he executed a certain instrument does not relieve the other from proving the execution by the sub- scribing witnesses. Hogland v. Sebring, 4 N. J. L. 105. Chap. IX.] THE LAW OF EVIDENCE. 356 Statutes. — Proof of acknowledgment and execution of deeds. G. S. 1895, " Conveyances," 4, 5, 7, 88, 100. Depositions of subscribing witnesses to a will. G. S. 1895, " Orphans' Courts," 17. Competency of attesting witnesses to wills. G. S. 1895, " Wills," 6. Maryland. Statute. — The general rule abrogated except as to wills. P. G. L. 1888, art-. 35, sec. 6. Under statute of 1825, proof of instruments except wills may be made without calling the attesting witnesses. Pannell v. Williams, 8 G. & J. 511; Sheppard v. Bevans, 4 Md. Ch. 408; Kecfer v. Zim- merman, 22 Md. 274. The testimony of an attesting witness is required as to the identity of the person signing by mark as well as to the execution of the instrument. Eichelberger v. Sifford, 27 Md. 320. Proof of handwriting. — Parker v. Fassitt, 1 H. & J. 337. It is sufficient for an attesting witness to identify his own signa- ture, even though he has no independent recollection of having seen the instrument signed, sealed, or delivered. Miller v. Honey, 4 H. & J. 241. Proof of the handwriting of a deceased witness is enough, without proving the handwriting of the maker. Parker v. Fassitt, 1 H. & J. 337. Absent witness. — If an attesting witness cannot be located or resides beyond the jurisdiction, execution may be proved by proof of such witness' handwriting. Dorsey v. Smith, 7 H. & J. 345. Temporary absence of the witness from the State is not sufficient to admit proof of his handwriting. Gaither v. Martin, 3 Md. 146. Proof of the execution of documents not recorded in other States, attested and unattested. P. G. L. 1888, art. 35, sees. 39, 40. Pennsylvania. Authorities. — January v. Goodman, 1 Dall. 208; Peters v. Con- dron, 2 S. & R. 80; Truly v. Byers, 6 Pa. 347; Davison v. Bloomer, 1 Dall. 123. One who sees an instrument signed and then subscribes it himself without being requested to do so is not an attesting witness in the sense that proof of his signature proves the execution. Huston v. Ticknor, 99 Pa. 231. 356 A DIGEST OF [Past II. The admissions of a party to a negotiable instrument may be proved without lirst producing an attesting witness. Williams v. Floyd, 11 Pa. 499. Evidence preliminary to proof of handwriting. — The handwriting of one witness cannot be proved so long as there is another witness unaccounted for. Tarns v. Hitner, 9 Pa. 441. Attesting witnesses must be produced or their absence satis- factorily explained, before evidence of handwriting is admissible. January v. Goodman, 1 Dall. 208; Bura v. Thompson, 2 Clark, 143. See Williams v. Floyd, 11 Pa. 499. Proof of the obligor's handwriting may be made. Clark v. Sander- son, 3 Binn. 192. The attesting witness to a lost receipt must be called or ac- counted for. McMahan v. McGrady, 5 S. & R. 314. Only one subscribing witness need be called. — McAdams v. Stil- well, 13 Pa. 90. Absent witness. — Handwriting may be proved when the witness cannot be located. Gallagher v. London Assur. Corp., 149 Pa. 25. Witnesses dead. — Proof of execution may be made by a party to the instrument who saw the witnesses sign. Irvin v. Patchin, 104 Pa. 51. Insanity. — If a witness is insane, proof of his handwriting may be made. ~Seely v. ~Xeely, 17 Pa. 227. Lost document. — If a document is lost, the rule is the same as that stated in the text with reference to burnt documents. Porter v. Wilson, 13 Pa. 641. Article 67.* cases ix which attesting witness need not be called. In the following cases, and in the case mentioned in Article 8S, but in no others, a person seeking to prove the execution of a document required by law to be attested is not bound to call for that purpose either the party who executed the deed or any attesting witness, or to prove the handwriting of any such party or attesting witness — * See Note XXVIII. Chap. IX.] THE LAW OF EVIDENCE. 357 (1) When he is entitled to give secondary evidence of the contents of the document under Article 71 (a) ; 10 (2) When his opponent produces it when called upon and claims an interest under it in reference to the subject-matter of the suit ;" (3) When the person against whom the document is sought to be proved is a public officer bound by law to pro- cure its due execution, who has dealt with it as a document duly executed. 12 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 570-575; 11 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 586 et seq. The testimony of attesting witnesses is, probably, not necessary where the document is offered collaterally in a proceeding affecting only strangers to it. Com. v. Castles, 9 Gray (Mass.), 121 ; Skinner v. Brigham, 126 Mass. 132. Where a document comes in incidentally in a suit between strangers, the attesting witnesses need not be called. Ayers v. c . 10 Cooke v. Tamswell, 1818, 8 Tau. 450; Poole v. Warren, 1838, 8 A. & E. 582. n Pearce v. Hooper, 1810, 3 Tau. 60; Reardcn v. Minter, 1843, 5 M. & G. 204. As to the sort of interest necessary to bring a case within this exception, see Collins v. Milford, 36 Conn. 100. Date. — Pigott v. O'Halloran, 37 Minn. 415; Bayley v. Taber, 5 Mass. 286; Orcutt v. Moore, 134 Mass. 48; Part's £. M. Co. v. Stone, 131 Mass. 384. Consideration. — Sustaining text. CZorpp v. Terrell, 20 Pick. (Mass.) 247; Twomey v. Crowley, 137 Mass. 184; O'Connell v. ireZty, 114 Mass. 97. Conditional delivery. — Where the delivery of a deed is not abso- lute, parol evidence is admissible to show the terms upon which it was delivered. Cutherell v. Cutherell, 101 Ind. 375. Existence of legal relation. — The official character of a person may be proved by parol ; also, that he was the deputy of an officer. Halt v. Bishop, 78 Ind. 370, 372. Showing existence of trust. — To establish a resulting trust, in opposition to the face of the deed, and to the answer of the trustee, the clearest and the strongest evidence is necessary. Jenison v. Graves, 2 Blackf. 440. Chap. XII.] THE LAW OF EVIDENCE. 431 An attempt to establish, by parol, a resulting trust in land held by an absolute conveyance for more than thirty years, held, under the circumstances, not established. Collier v. Collier, 30 Ind. 32. Receipts. — A receipt which expresses the purpose for which the money is paid cannot be contradicted by oral evidence. Henry v. Henry, 11 Ind. 236; Tisloe v. Oraeter, 1 Blackf. 353. A mere receipt, however, may be explained, controlled, qualified, or even contradicted by parol evidence. Candy v. Hanmore, 76 Ind. 125, 126; Alcorn v. Morgan, 77 Ind. 184, 186; Scott v. Scott, 105 Ind. 584, 588; Lyon v. Lenon, 106 Ind. 567, 569; Adams v. Davis, 109 Ind. 10, 21; Ohio, etc., Ry. Co. V. Crunibo, 4 Ind. App. 456, 459; Lapping v. Duffy, 65 Ind. 229; Markel v. Spitler, 28 Ind. 488; Lash v. Ren- dell, 72 Ind. 475; Henry v. Henry, 11 Ind. 236; Moore v. Korty, 11 Ind. 341; Beedle v. State, 62 Ind. 26; Stewart v. Armel, 62 Ind. 593; Adams v. Davis, 109 Ind. 10; Lemmon v. Reed, 14 Ind. App. 655; Fox v. Cox, 20 Ind. App. 61; Robeson v. Wolf, 27 Ind. App. 683; Sherry v. Picken, 10 Ind. 375; Lewis v. Matlock, 3 Ind. 120; Markel v. Spitler, 28 Ind. 488; Travelers' Ins. Co. v. Chappelcnc, 83 Ind. 429, 435. Oral evidence is admissible to contradict the entry of satisfaction of a mortgage. Lapping v. Duffy, 65 Ind. 229. But a receipt containing the contract cannot be varied. Alcorn v. Morgan, 77 Ind. 184, 186; McKernan v. Mayhew, 21 Ind. 291; Henry v. Henry, 11 Ind. 236. Where a receipt was for a sum of money as having been received " on a decree " specified, parol evidence was not admissible to prove that it was given in full of the principal as such. Hull v. Butler, 1 Ind. 167. Release. — Where a release was explained and qualified in a par- ticular case, see Scott v. Scott, 105 Ind. 584, 588. Payment. — Payment may be shown by parol. Bond Co. v. Bruce, 13 Ind. App. 550; Sivope v. Forney, 17 Ind. 385. Parol evidence is admissible to show whether or not a note or check given was in payment. Rhodes v. Webb-Jameson Co., 19 Ind. App. 195; Orner v. Sattley, etc., Co., 18 Ind. App. 122; Sutton v. Baldwin, 146 Ind. 361; Cox v. Hayes, 18 Ind. App. 220; Wipperman v. Hardy, 17 Ind. App. 142; Price v. Barnes, 7 Ind. App. 1; Combs v. Bays, 19 Ind. App. 263. And see Zimmerman v. Adee, 126 Ind. 15, 16. Admission of parol evidence, secondary evidence. — Parol evidence is admissible of the time of the execution and delivery of a deed. 432 A DIGEST OF [Past II. Davar v. Cardwell, 27 lnd. 478; Uhl v. Moorhous, 137 lnd. 445; State ex rel. v. Gregory, 132 lnd. 387; Forgerson v. Smith, 104 lnd. 246. But see WooMen, v. Wire, 110 lnd. 251. If no objection is made, parol evidence is admissible to prove title to real estate. Stockwell v. State, 101 lnd. 1; Uhl v. Moorehous, 137 lnd. 445, 448. And the contents of a writ. McFadden v. Fritz, 110 lnd. 1, 5. And to show that book entries were not made although these should have been. Marks v. Orth, 121 lnd. 10, 12. The fact of a transaction, evidence by a writing may be shown by parol. Stanley v. Sutherland, 54 lnd. 339. The writing evidencing a contract parity in writing is admissible. Tomlinson v. Briles, 101 lnd. 538; File v. Springel, 132 lnd. 312, 315. Practice. — Admission without objection of parol evidence will sus- tain a finding, although it would have been held incompetent as not the best available evidence, if objection had been made. Riehl v. Evansville, etc., Assn., 104 lnd. 70, 74; Judd v. Small, 107 lnd. 398, 399; Ycager v. Wright, 112 lnd. 230, 237; Indiana, etc., Ry. Co. v. Finnell, 116 lnd. 414, 422; Graves v. State, 121 lnd. 357, 359; Poole v. McGahan, 124 lnd. 583, 584; Winemiller v. Thrash, 125 lnd. 353, 354. Parol evidence of the contents of a telegram is harmless, where it is shown that the information contained therein was orally com- municated by the sender of the message to the receiver. Terre Haute, etc., R. R. Co. v. Stcckicell, 118 lnd. 98, 103. New Jersey. General rule. — Parker v. Jameson, 32 X. J. Eq. 222; Van Syckle v. Dalrymple, 32 N. J. Eq. 233, 826; Naumberg v. Young, 44 N. J. L. 331; Clark v. Elizabeth, 40 N. J. L. 172; Carlton v. Wine Co., 33 N. J. Eq. 466; Fire Ins. Co. v. Martin, 40 N. J. L. 568; Bandholz v. Judge, 62 N. J. L. 526; Hanrahan V. National, etc., Assn., 66 N. J. L. 80; Ellison v. Gray, 55 N. J. Eq. 581; Emery v. King, 64 N. J. L. 529; s<-lin,rl: v. Spring Lake Co., 47 N. J. h.q. 44; Van Horn v. Van Horn. \<.) X. J. Eq. 327; Leslie v. Leslie, 50 N. J. Eq. 155; Domes v. Insurance Co., 35 X. J. L. 366; Chetwood v. Brittan, 2 N. J. Eq. 438, 4 X. J. Eq. 334, 5 X. J. Eq. 628; Locander v. Lounsbery, 24 X. J. Eq. 417, 25 X. J. Eq. 554. Collateral agreements. — Collateral agreements on a distinct sub- ject may be proved by parol, but not when relating to the same Chap. XII.] THE LAW OF EVIDENCE. 433 subject. Naumberg v. Young, 44 N. J. L. 331; McTague v. Finne- gan, 54 N. J. Eq. 454. Contemporaneous parol understanding not admissible. Hotel Co. v. I' Anson, 43 N". J. L. 442; Remington v. Wright, 43 N. J. L. 451; Society v. Haight, 1 N. J. Eq. 394; McKelway v. Cook, 4 N. J. Eq. 102; Todd v. Fhilhower, 4 Zab. 796; Thibault's Case, 4 Zab. 805. Oral proof admitted to show a contemporaneous agreement that a promissory note might be satisfied in merchandise and that it had been so satisfied. Buchanon v. Adams, 49 N. J. L. 636. An offer to prove such a contemporaneous agreement should be full, specific, and not doubtful. Middleton v. Griffith, 57 N. J. L. 442. Supplementary agreements. — A document which upon its face does not represent a complete agreement may be supplemented by parol. Naumberg v. Young, 44 N. J. L. 331; Ryle v. Ryle, 41 N. J. Eq. 582, 597; Perrine v. Cooley, 39 N. J. L. 449; Park v. Miller, 27 N. J. L. 338; Ackens v. Winston, 22 N. J. Eq. 444; Saltar v. Kirkbride, 1 South. 223. Offer in writing to do work for a gross sum accepted orally; evi- dence admitted as to oral agreement as to time of payment. Bruce v. PearsalU 59 N. J. L. 62, 586. Substituted agreements. — Parol evidence is admissible to prove a subsequent oral agreement rescinding the prior written one, or substituting a different one therefor. McKinstry v. Runk, 12 N. J. Eq. 60; Church v. Florence Iron Works, 45 N. J. L. 129; Long v. Hartwell, 34 N. J. L. 116. And see Hogencamp v. Ackerman, 4 Zab. 133; French v. Griffin, 18 N. J. Eq. 279. A promise to extend the time of payment of a bond, made after its maturity, may be shown by parol. Van Syckel v. O'Hearn, 50 N. J. Eq. 173. Rescission. — A written contract, while still executory, may be rescinded by parol. Perrine v. Cheeseman, 6 Hal. 174; Rodman v. Zilley, 1 N. J. Eq. 320; King v. Morford, 1 N. J. Eq. 274. Instrument never in effect. — Parol evidence admitted to show that a writing was not in fact what it purported to be. Glob'i Lamp Co. v. Kern Gaslight Co., 67 N. J. L. 279. Parol evidence admissible to show that a deed was executed con- ditionally and that the condition never occurred. Black v. Shreve, 13 N. J. Eq. 455. 28 434 A DIGEST OF [Pabt II. Custom and usage. — A custom or usage of a particular trade or business is admissible to explain a written contract but not to con- tradict its terms. Steward v. Scudder, 4 Zab. 9'6; Schenck v. Griff en, 38 N. J. L. 463; Barton v. McKelway, 2 Zab. 165; Smith v. Clayton, 29 N. J. L. 357. A usage is not provable by parol if it is contrary to a rule of law. Electric Co. v. Elizabeth, 59 N. J. L. 134. See Overman v. Bank, 30 N. J. L. 61, 31 N. J. L. 563. Agency. — Parol evidence is admissible to show that one signed as agent of an undisclosed principal, both in favor of and against such principal. Smith v. Felter, 63 N. J. L. 30; Simanton v. Vliet, 61 N. J. L. 595; Borcherling v. Katz, 37 N. J. Eq. 150. But see Schenck v. Spring Lake Co., 47 N. J. Eq. 44. Bill of lading. — The receipt of a carrier for goods is not conclu- sive as to their quantity or condition. Ayres v. Railroad Co., 29 N. J. L. 397. Receipts. — A receipt may be varied by parol unless it be also a contract. Swain v. Frazier, 35 N. J. Eq. 326; Church v. Railroad Co., 63 N. J. L. 470; Kenny v. Kane, 50 N". J. L. 562; Joslin v. Giese, 59 N. J. L. 130; Middlesex v. Thomas, 20 N. J. Eq. 39; Bird v. Davis, 14 N. J. Eq. 467; Cole v. Taylor, 2 Zab. 59; Crane v. Ailing, 3 Green, 423; Wildrick v. Sivain, 34 N. J. Eq. 167, 35 N. J. Eq. 326 ; Dorman v. Wilson, 39 N. J. L. 474. A tax receipt is only a voucher and does not estop the collector, as against a bona fide purchaser, from showing that it was given for a check which was never honored. Kahl v. Love, 37 N. J. L. 5. Consideration. — Parol evidence of a different or an additional consideration is admissible. Silvers v. Potter, 48 N. J. Eq. 539; Morris Canal Co. v. Ryerson, 27 N. J. L. 457. Recital of consideration in a deed does not estop one from show- ing that other consideration was agreed to be paid. Stearns v. Stearns, 23 N. J. Eq. 167; Herbert v. Schofield, 9 N. J. Eq. 492; Sprer v. Speer, 14 N. J. Eq. 240; Lloyd v. Newell, 3 Hal. 296: Bolles v. Beach, 2 Zab. 680 ; Morris Canal Co. v. Ryerson, 27 N. J. L. 457. But the consideration cannot be shown to be wholly different. Adams v. Bank. 10 N. J. Eq. 535. Acknowledgment of receipt of the consideration in a deed is prima facie evidence of payment, but is not conclusive. Herbert v. Scho- field, 9 N. J. Eq. 492; Demarest v. Terhune, 18 N. J. Eq. 532. Chap. XII.] THE LAW OF EVIDENCE. 435 Statutes.— Fraud in the consideration of sealed instruments. G. S. 1895, " Evidence," 16. When forgery or fraud in execution of a sealed instrument is the issue, parol evidence to show the consideration is admissible. Wain v. Wain, 53 X. J. L. 429. A seal is only presumptive evidence of a consideration. G. S. 1895, "Evidence," 72. Bills and notes. — Wright v. Remington, 41 N. J. L. 48, 43 N. J. L. 451; Johnson v. Ramsay, 43 N. J. L. 279; Van Name v. Vander- veer, 2 N. J. L. J. 125; Honey man v. Van Nest, 4 X. J. L. J. 151; Stiles v. Vandewater, 48 N. J. L. 67 ; Uhler v. Browning, 28 X. J. L. 82; Kean v. Davis, 1 Zab. 683; Paul v. Smith, 32 N. J. L. 13; Hutchinson v. Hendrickson, 29 N. J. L. 180; Chaddock v. Vanneas, 35 N. J. L. 517; Watkins v. Kirkpatrick, 26 N. J. L. 84; Durant v. Banta, 27 X. J. L. 624; Jacques v. McKnight, 26 X. J. L. 92. Signer of a negotiable instrument not allowed to show that he signed as agent. Schenck v. Spring Lake Co., 47 N. J. Eq. 44. Accommodation maker of a promissory note not allowed to prove a contemporaneous parol agreement that a second indorser should be liable jointly with him. Kling v. Kehoe, 58 N. J. L. 529. In equity. — Parol evidence admissible in equity to show that a deed absolute on its face is a mortgage. Lokerson v. Stillwell, 13 N. J. Eq. 357; Vandegrift v. Herbert, 18 N. J. Eq. 466; Condit v. Tichenor, 19 X. J. Eq. 43; Van Keuren v. McLaughlin, 19 N. J. Eq. 187, 575; Washburn v. McLaughlin, 19 N. J. Eq. 428; Phillips v. Hulsizer, 20 N. J. Eq. 308; Melick v. Creamer, 25 N. J. Eq. 430; Sweet v. Parker, 22 X. J. Eq. 453; Cake v. Shull, 45 X. J. Eq. 208; Pace v. Bartlcs, 47 X. J. Eq. 170; Winters v. Earl, 52 X. J. Eq. 52; Vanderhoven v. Romaine, 56 X. J. Eq. 1. Contra at law. Abbott v. Hanson, 4 Zab. 493. Parol evidence admissible to show fraud, mistake, accident, or surprise. Stoutenburgh v. Tompkins, 9 X. J. Eq. 332. Proof that a contract was induced by fraud must be clear and convincing, in order to justify a disregard of the written instru- ment. Barr v. Chandler, 47 X. J. Eq. 532. Parol evidence admissible to establish a resulting trust. Heck v. Beck, 43 X. J. Eq. 39. Or a trust where the deed was absolute on its face. Parker v. Snyder, 31 X. J. Eq. 164. Other illustrations. — Fact of holding a public office may be shown by parol. Ritchie v. Widdemer, 59 X. J. L. 290. 436 A DIGEST OF [Pabt II. An omitted name cannot be supplied by parol. Hoffman v. Larue, Pen. 685. Insurance policy not to be varied by parol. Martin v. Insurance Co., 57 N. J. L. 623; Bennett v. Insurance Co., 55 N. J. L. 377. Oral evidence not admissible to alter a mortgage. Van Ness v. Robbins, 47 N. J. Eq. 329. Maryland. General rule. — Fire Ins. Co. v. Langley, 62 Md. 196; Jones v. Sycr, 52 Md. 211; Dixon v. Clayoille, 44 Md. 573; Appleman v. Fisher, 34 Md. 540; McClernan v. Hall, 33 Md. 293; Artz v. Grove, 21 Md. 456; Bladen v. Weils, 30 Md. 577; Wesley v. Thomas, 6 H. & J. 24; Cassard v. McGlannan, 88 Md. 168. Declarations at the time of execution of a will that it shall be inoperative on a certain contingency are not admissible. Sewell v. Slingluff, 57 Md. 537. Parol evidence is not admissible to change the name of a bene- ficiary inserted in a trust deed. Bank v. Harlan, 89 Md. 675. Previous or contemporaneous parol agreements are not provable. Merritt v. Peninsular Con. Co., 91 Md. 453. Where a contract describes land sold as containing about sixty- five acres, the vendee cannot prove parol representations that it contained at least sixty-five acres. Balto. Society v. Smith, 54 Md. 187. 1 1 may be for the jury to say whether a contract was intended to be wholly written or partly written and partly oral. Roberts v. Bonaparte, 73 Md. 191. If the writing is merely a part of the execution of a previous parol agreement, it does not exclude parol testimony. Harwood v. Jones. 10 G. & J. 404. A written contract cannot be explained by a subsequent letter of one of the parties. Key v. Parnham, 6 H. & J. 418. Purpose and intent. — Parol evidence is not admitted to show a purpose or an intent in inserting a term of a contract different from the one manifested in the writing itself. Barker v. Borzone, 48 Md. 474: F.ckcnrode v. Chemical Co., 55 Md. 51; Farrow v. Hayes, 51 Md. 408. Preliminary negotiations. — Evidence of preliminary negotiations is not admissible, except to prove fraud, accident, or mistake. Timms v. Shannon, 19 Md. 296; King v. Clogg, 40 Md. 341; Penni- Chap. XII.] THE LAW OF EVIDENCE. 437 man v. Winner, 54 Md. 127; Dance v. Dance, 50 Md. 433; Gorsuch v. Rutledge, 70 Md. 272 ; Franklin v. Cla/lin, 49 Md. 24. Conversations not admissible. Lazear v. National Union Bank, 52 Md. 78; Warren v. Keystone Co., 05 Md. 547. Antecedent letters of the parties are not admissible. Badart v. Foulon, 80 Md. 579. Merger of oral in written. — A verbal contract afterward reduced to writing is merged in the writing and cannot itself be proved. Mi«s v. Matthews, 7 Md. 315; Worthington v. Bullitt. 6 Md. 172. Parol understandings. — When the contract appears to be complete, evidence of contemporaneous parol understandings is not admis- sible. Delamater v. Chappcll. 48 Md. 244; Neal v. Hopkins, 87 Md. 19; Blackistone v. BanA:, 87 Md. 302. When a contract of sale is in writing, an oral warranty cannot be proved. Nally v. Long, 71 Md. 585; King v. Clogg, 40 Md. 341. Additional terms. — An additional term cannot be added to a written contract that appears to be complete. Thompson v. Gortner, 73 Md. 474 (sale of corn; parol agreement as to quality i ; Wil- liams v. Kent, 07 Md. 350 (lease) ; Penniman v. Winner, 54 Md. 127. Parol evidence is admissible to show that a written memorandum of sale does not contain all the terms of the agreement, not to vary or contradict it, but to show that it does not satisfy the require- ments of the Statute of Frauds. Fisher v. Andrews, 94 Md. 40. Independent collateral agreements. — Parol proof is permissible to show an agreement collateral to a written one and not inconsistent therewith if it concerns an independent matter. Creamer v. Ste- phenson, 15 Md. 211; McCreary v. McCreary, 5 G. & J. 147: Basshor v. Forbes, 30 Md. 154; Walker v. Schindel, 58 Md. 360; S tailings v. Gottschalk, 77 Md. 429; Furnace Co. v. Hooper, 90 Md. 390. The contract in a bill of lading may be added to by proving a parol supplementary agreement. Aticell v. Miller, 11 Md. 348. When a written contract is silent as to the manner and terms of payment, they may be shown by parol. Paul v. (koings, 32 Md. 402. Where an owner has contracted for the building of a house for a specified sum, it may be shown that he agreed by parol to pay the workmen. Andre v. Bodman, 13 Md. 241. It may be shown that the vendor of a stock of goods undertook by parol not to open a similar store in the town, though the con- tract of sale be in writing. Fusfing v. Sullivan. 41 Md. 102. 438 A DIGEST OF [Pabt TI. Agency. — Une cannot, in order to escape liability himself, show that he was acting as an agent. Standford v. Horwitz, 49 Md. 525. Subsequent agreements. — Additions and changes may be made in a written contract by subsequent parol agreement. Voates v. Bangs- ton, 5 Md. 121; Franklin v. Long, 7 G. & J. 407; Insurance Co. v. Hamill, 5 Md. 17U. A subsequent waiver or abandonment may be shown by parol. Allen v. Sowerby, 37 Md. 410; Kribs v. Jones, 44 Md. 396; Fire Ins. Co. v. Qusdorf, 43 Md. 506; Herzog v. Sawyer, 61 Md. 344. Instrument never in effect. — It may be shown by parol that a signed instrument was not intended to be a binding contract. Ad- vertising Co. v. Met. Shoe Co., 91 Md. 61. It may be shown by parol that an instrument is void or was deliv- ered on condition. Leppoc v. Union Bank, 32 Md. 136; Beall v. Poole, 27 Md. 645; Harrison v. Morton, 83 Md. 456. Fraud. — Fraud, mistake, accident, or alteration may be proved by parol testimony. Hum v. Soper, 6 H. & J. 276; Davis v. Ham- blin, 51 Md. 525; Booth v. Robinson, 55 Md. 419. A mistake in the date of a letter may be shown by parol. Stock- ham v. Stockham, 32 Md. 196. The terms of a deed cannot be varied by parol, except to show fraud, accident, or mistake. West Boundary Co. v. Bayless, 80 Md. 495. In equity. — The rule is the same in equity as at law; parol evi- dence is admitted to show fraud or a trust. Watkins v. Stockett, 6 H. & J. 435; Harwood v. Jones, 10 G. & J. 404. A trust cannot be raised by proof of parol declarations inconsist- ent witli the expressed intention of a deed. Jones v. Slubey, 5 H. & J. 372. Parol evidence is receivable in equity to reform an instrument. Planters Ins. Co. v. Deford, 38 Md. 382. When a mortgage is attacked for fraud, parol evidence of its true character, its purpose, and the consideration may be given. Price v. Cover, 40 Md. 102. A deed absolute on its face may be shown to be a mortgage. Artz v. Crave. 21 Md. 456: Brown v. Reilly. 72 Md. 489; Bank of West, v. Whyte, 1 Md. Ph. 536, 3 Md. Ch. 508. Consideration. — It may be shown by parol that there was a fur- ther consideration not mentioned in the contract. Fusting v. Sulli- van. 41 Md. 162. See Boyce v. Wilson. 32 Md. 122. Chap. XII.] THE LAW OF EVIDENCE. 439 Receipts. — A receipt for money paid may be explained or contra- dicted by parol. Wolfe v. Hauver, 1 Gill, 84; Trisler v. William- son, 4 H. & McH. 219; liobinett v. Wilson, 8 Md. 180; Cramer v. Shriner, 18 Md. 140; Shepherd v. Bevin, 9 Gill, 32. Nature of the transaction. — Where a written contract is ambigu- ous, parol evidence is admissible to show in what capacity tho parties signed and the true nature of the transaction. Morrison v. Baechtold, 93 Md. 319. Usages and customs. — Usages may be proved in connection with a written contract; they must be general and well established. Blake v. Stump, 73 Md. 160; Barker v. Borzon, 48 Md. 474; Duttng v. Railroad Co., 66 Md. 120; Williams v. Woods, 16 Md. 220; Pat- terson v. Crowther, 70' Md. 124. Evidence of a local usage is admissible, if the parties can be shown to have known of it. Insurance Co. v. Wilson, 2 Md. 217. A usage cannot be proved if it contradicts the terms of a con- tract. Farmville Ins. Co. v. Butler, 55 Md. 233; Rich v. Boyce, 39 Md. 314; B. & 0. R. Co. v. Green, 25 Md. 72; Gibney v. Curtis, 61 Md. 192; Bank v. Renshaw, 78 Md. 475; Balto. Baseball Club v. Pickett, 78 Md. 375. Time for objection. — If no objection is made on the trial to the introduction of parol evidence, no objection can be made on appeal. Sentman v. Gamble, 69 Md. 293. Pennsylvania. General parol evidence rule. — Heebner v. Worrall, 38 Pa. 376 ; Harbold v. Kuster, 44 Pa. 392; Collins v. Baumgardner, 52 Pa. 461; Martin v. Berens, 67 Pa. 459; Keener v. Bank of U. S., 2 Pa. 237; Leibert v. Heitz, 193 Pa. 590; Storage Co. v. Speck, 194 Pa. 126; Krueger v. Nicola, 205 Pa. 38; Burton v. Forest Oil Co.. 204 Pa. 349; King v. Gas Coal Co., 204 Pa. 628; Ogden v. Traction Co., 202 Pa. 480; Kaufman v. Friday, 201 Pa. 178; Dickson v. Manufacturing Co., 179 Pa. 343. In the absence of fraud or mistake, parol evidence is not admis- sible to vary, alter, or contradict the terms of a written instru- ment. Christine v. Whitehill, 16 S. & R. 98 (deed) ; Snyder v. Snyder, 6 Binn. 483 (extent of land conveyed) ; Colin m v. Hocker, 1 Rawle. 108 (reservation of a right of way) ; Collingtcood v. Ir- win, 3 Watts, 306 (covenant of warranty) ; Fulton v. Hood. 34 Pa. 365 (bond and warrant of attorney) ; Hill v. Gaw, 4 Pa. 493 440 A DIGEST OF [Pabt II. (check) ; Weisenberger v. Insurance Co., 56 Pa. 442 (insurance policy) ; Wodoclc v. Robinson, 148 Pa. 503 (lease) ; Stull V. Thomp- son, 154 Pa. 43 (manner of paying rent) ; Gearing v. Carroll, 151 Pa. 79 (contract of partnership). General rule (contracts). — Phillips v. Meily, 106 Pa. 536; Van Yoorhis v. Rea, 153 Pa. 19; McClure v. Freight Ry. Co., 90 Pa. 269; Horn v. Miller, 142 Pa. 557; Halloivell v. Lierz, 171 Pa. 577; Dixon- Woods Co. v. GZass Co., 169 Pa. 167; Forrest v. Nelson, 108 Pa. 481; Ziegler v. McFarland, 147 Pa. 607. Parol evidence is not admissible to show that the principal sum secured by a mortgage was* not to be repaid. Schiehl's Estate, 179 Pa. 308. Parol testimony is admitted to explain a receipt or an entry in an account-book, or to show the purpose for which a note was given. Sheaffer v. Sensenig, 182 Pa. 634. A parol contract with a school district may be proved even though the minutes contain nothing in regard to it. Furniture Co. v. School Dist., 158 Pa. 35; Roland v. School Dist., 161 Pa. 102. Entries in the books of one of the parties setting out the contract do not render parol evidence inadmissible. Chapin v. Cambria Iron Co., 145 Pa. 478. Boundaries in deeds. — The boundaries of land conveyed by deed cannot be shown to be different from those set out in the deed. Weiler v. Hottenstein, 102 Pa. 499; Merriman v. Bush, 116 Pa. 276; Fuller v. Weaver, 175 Pa. 182. Courses and distances may be shown by parol to vary from the monuments on the ground. Mageehan v. Adams, 2 Binn. 109. Consideration. — Where the consideration of a writing consists of a verbal promise it may be proved by parol. Coal Co. v. McShain, 75 Pa. 238 ; Shughart v. Moore, 78 Pa. 469 ; Graver v. Scot t , 80 Pa. 88. But an expressed pecuniary consideration cannot be disproved. Allison v. Kurtz, 2 Watts, 185. Parol evidence is admissible to show another or a greater con- sideration than the one expressed. Jack v. Dougherty, 3 Watts, 151; Buckley's Appeal, 48 Pa. 491; Lewis v. Brewster, 57 Pa. 410; Taylor v. Preston, 79 Pa. 436; Hay den v. Mentzer, 10 S. & R. 329. The actual consideration of a deed may be shown by parol. Long v. Reed, 16 Pa. Co. Ct. 110; Audenried v. Walker, 11 Phila. 183; Wolf v. Kohr, 133 Pa. 13; Henry v. Zurflieh, 203 Pa. 440. Chap. XII.] THE LAW OF EVIDENCE. 441 The consideration may be shown not to be love and affection or the email sum of money mentioned, but an antenuptial parol agree- ment. Barnes v. Black, 193 Pa. 447. Fraud. — Parol evidence is admissible to show fraud. Hurst v. Kirkbride, 1 Binn. 616; Campbell v. McClenachan, 6 S. & R. 171; Overton v. Tracey, 14 S. & R. 311 j Hultz v. Wright, 16 S. & R. 345; Maute v. Gross, 56 Pa. 250; Horn v. Brooks, 61 Pa. 407; Kostenbader v. Peters, 80 Pa. 438; Chew v. Gillespie, 56 Pa. 309. Evidence of fraud in procuring a release in full. Clayton v. Trac- tion Co., 204 Pa. 536. A contemporaneous parol agreement, on the faith of which a note is given, is admissible in an action on the note to prove fraud. Coal & Iron Co. v. Willing, 180 Pa. 165. Mistake. — Parol evidence is admissible to show that a clause was inserted by mistake. Hamilton v. Asslin, 14 S. & R. 448; Mehaffy v. Share, 2 P. & W. 361; Finney's Appeal, 59 Pa. 398; Insurance Co. v. Webster, 59 Pa. 227; Schotte v. Meredith, 192 Pa. 159. Parol evidence is admissible to show a term of the contract omitted by mistake. Hyndman v. Hogsett, 111 Pa. 643; Schotte v. Meredith, 197 Pa. 496. Mortgages. — An absolute deed may be shown by parol to be a mortgage. Maffitt v. Rynd, 69 Pa. 380; Sweetzer's Appeal, 71 Pa. 264; Danzeisews Appeal, 73 Pa. 65; Ballentine v. White, 77 Pa. 20; Brown v. Nickle, 6 Pa. 390; Kunkle v. Wolfersberger, 6 Watts, 126. As to proving a trust, see Zimmerman v. Barber, 176 Pa. 1. Contemporaneous parol agreement not provable. — Streator v. Paxton, 201 Pa. 135; Baker v. Flick, 200 Pa. 13; Melcher v. Hill. 194 Pa. 440; Irwin v. Irwin, 169 Pa. 529; Hunter v. McTIose, 100 Pa. 38; Car Mfg. Co. v. Lumber Co., 99 Pa. 605; Callan v. Lukens, 89 Pa. 134; Chartiers R. Co. v. Hodgens, 85 Pa. 501. Parol evidence admitted to prove a contemporaneous oral agree- ment which induced the execution of the written contract, even though its effect is to vary the writing. Sutch's Estate (No. 1) , 201 Pa. 305. Understanding of the parties. — What one understood at the time cannot be introduced to vary the terms of a written contract. Bart- ley v. Phillips, 179 Pa. 175. As against a corporation the minutes of the board of directors are conclusive, and the parol understanding of individual directors cannot be shown. McOoican v. Consolidated Co., 181 Pa. 55. 442 A DIGEST OF [Pabt II. A contract provides that a dam shall be built " in a good and substantial manner." The understanding of the parties may be shown. Quigley v. De Haas, 98 Pa. 292. Negotiations and declarations. — Conversations and declarations of the parties are not provable. Wallace v. Baker, 1 Binn. 610; Reichart v. Castator, 5 Binn. 109; Christine v. Whitehill, 16 S. & R. 98 ; Ellmaker v. Insurance Co., 5 Pa. 183 ; Yaryan Co. v. Glue Co., 180 Pa. 480. Negotiations leading up to the contract are admissible only to prove fraud or trust. McGinity v. McGinity, 63 Pa. 38. Subsequent declarations are admissible only to corroborate. Rearick v. Rearick, 15 Pa. 66; Wager v. Chew, 15 Pa. 323. Bills and notes. — Heydt v. Frey, 13 Atl. 475; Bank v. Stadelman, 153 Pa. 634; Allen v. Clarke, 132 Pa. 40; Haner v. Patterson, 84 Pa. 274; Temple v. Baker, 125 Pa. 634. Not admissible to show that a note was to be renewable at ma- turity. Anspach v. Bast, 52 Pa. 356; Hacker v. Refining Co., 73 Pa. 93; Wharton v. Douglass, 76 Pa. 273. Parol evidence allowed to show that one of several joint makers of a note was in reality a mere surety. Miller v. Stem, 2 Pa. 286. Receipts. — A mere acknowledgment of payment may be ex- plained or contradicted by parol. Batdorf v. Albert, 59 Pa. 59; Shoemaker v. Stiles, 102 Pa. 549; Jessop v. Ivory, 172 Pa. 44; Borlin v. Highberger, 104 Pa. 143; Shepherd v. Busch, 154 Pa. 149; Haverly v. Railway Co., 125 Pa. 116; Mason Fruit-Jar Co. v. Smucker, 174 Pa. 87; Atkins v. Payne, 190 Pa. 5; Sargeant v. In- surance Co., 189 Pa. 341 ; BerryghilVs Appeal, 35 Pa. 245. Parol evidence is admissible to show that a note was taken as collateral security only and not in full settlement, even though a receipt in full was given. Trymby v. Andress, 175 Pa. 6; Shepherd v. Busch, 154 Pa. 149. When a receipt is a part of a written contract it cannot be varied by parol. Wood v. Donahue, 94 Pa. 128; Jessop v. Ivory, 172 Pa. 44. Acknowledgment of payment in a contract for the conveyance of land is not conclusive of the fact of payment. Watson v. Blaine, 12 S. & R. 131. A receipt is prima facie evidence of payment as stated. Barclay v. Morrison, 16 S. & R. 129; Hamsher v. Kline, 57 Pa. 397. A receipt in full is not conclusive of a settlement. Horton's Ap- peal, 38 Pa. 294; Hamsher v. Kline, 57 Pa. 397. Chap. XII.] THE LAW OF EVIDENCE. 443 Receipt in full may act as an estoppel as against third parties. Ebert v. Johns, 206 Pa. 395. Acknowledgment of payment in a deed is not conclusive of pay- ment. Hamilton V. McGuire, 3 i5. & R. 355; Weigley v. Weir, 7 S. & R. 309. Nor is it conclusive as to the amount paid. Straw- bridge v. Cartledge, 7 W. & S. 394. Bills of lading. — Bill of lading not to be varied by parol. Keller v. B. d 0. It. Co., 196 Pa. 57. A bill of lading is not such a contract that omitted provisions may not be supplied by parol. Steamboat Co. v. Brown, 54 Pa. 77. Records. — Contents of a judgment record cannot be proved by parol. Walsh v. Watrous, 2 Law T. (N. S.) 7. A record cannot be contradicted by parol. Hoffman v. Coster, 2 Whart. 453; Graham v. Smith, 25 Pa. 323. But a record may be impeached for fraud. Thome v. Insurance Co., 80 Pa. 15. Contract on its face incomplete. — Where a writing does not pur- port to represent all the terms of a contract, those not appearing may be proved by parol. Schwab v. Ginkinger, 181 Pa. 8; Selig v. Rehfuss, 195 Pa. 200; Dickson v. Harlman Mfg. Co., 179 Pa. 343. Condition precedent. — Keener v. Crago, 81 Pa. 166; Cullmans v. Lindsay, 114 Pa. 170. Waiver. — A parol waiver of a written agreement may be proved. Hyde v. Kiehl, 183 Pa. 414. Substituted and subsequent contracts. — A written contract may be rescinded by parol and a new one substituted for it. Harrokl v. McDonald, 194 Pa. 359; Beatty v. Larzelere, 194 Pa. 605; Machine Co. v. Coal Co., 204 Pa. 177. A subsequent independent contract may be proved even though it vary or contradict a writing. Whitney v. Shippen, 89 Pa. 22 : Ileil- man v. Weinman, 139 Pa. 143; Holloway v. Frick, 149 Pa. 178. A subsequent parol agreement with different subject-matter may be proved. Collins v. Barnes, 83 Pa. 15. The subsequent agreement requires a new consideration. Malone V. Dougherty, 79 Pa. 46. Payment. — Payment may be proved by parol. Fowler v. Smith, 153 Pa. 639. Date. — The real time when a deed was executed may be shown. Geiss v. Odenheimer, 4 Yeates, 278. 444 A DIGEST OF [Pabt II Article 91.* what evidence may be given for the interpretation of documents. (1) Putting a construction upon a document means as- certaining the meaning of the signs or words made upon it, and their relation to facts. (2) In order to ascertain the meaning of the signs and words made upon a document, oral evidence may be given of the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local, and provin- cial expressions, of abbreviations, and of common words which, from the context, appear to have been used in a peculiar sense; 21 but evidence may not be given to show that common words, the meaning of which is plain, and which do not appear from the context to have been used in a peculiar sense, were in fact so used. 22 (3) If the words of a document are so defective or am- biguous as to be unmeaning, no evidence can be given to show what the author of the document intended to say. 23 (4) In order to ascertain the relation of the words of a refers, or may probably have been intended to refer, 24 or which identifies any person or thing mentioned in it. * See Note XXXIII. ai Illustrations (a) (6) (c). 22 Illustration (a). 23 Illustrations (e) and (/). 24 See all the Illustrations. 25 Illustration (g). Chap. XII.] THE LAW OF EVIDENCE. 445 Such facts are hereinafter called the circumstances of the case. 20 ( 5 ) If the words of a document have a proper legal mean- ing, and also a less proper meaning, they must be deemed to have their proper legal meaning, unless such a construc- tion would be unmeaning in reference to the circumstances of the case, in which case they may be interpreted accord- ing to their less proper meaning. 27 (6) If the document has one distinct meaning in refer- ence to the circumstances of the case, it must be construed accordingly, and evidence to show that the author intended to express some other meaning is not admissible. 28 (7) If the document applies in part but not with accu- racy or not completely to the circumstances of the case, the Court may draw inferences from those circumstances as to the meaning of the document, whether there is more than one, or only one thing or person to whom or to which the inaccurate description may equally well apply. In such cases no evidence can be given of statements made by the author of the document as to his intentions in reference to the matter to which the document relates, though evidence may be given as to his circumstances, and as to his habitual use of language or names for particular persons or things. 29 2 <5 As to proving facts showing the knowledge of the writer, and for an instance of a document which is not admissible for that purpose, *ee Adie v. Clark, 1876, 3 Ch. Div. 134, 142. 27 Illustration (/?,). 28 Illustration (t). 59 Illustrations (k) {I) (m). 446 A DIGEST OF [Pabt II. (8) If the language of the document, though plain in itself, applies equally well to more objects than one, evi- dence may be given both of the circumstances of the case and of statements made by any party to the document as to his intentions in reference to the matter to which the document relates. 30 (9) If the document is of such a nature that the Court will presume that it was executed with any other than its apparent intention, evidence may be given to show that it was in fact executed with its apparent intention. 31 Illustrations. (a) A lease contains a covenant as to " ten thousand rabbits." Oral evidence to show that a thousand meant, in relation to rabbits, 1200, is admissible.32 (b) A sells to B " 1170 bales of gambier." Oral evidence is admis- sible to show that a " bale " of gambier is a package compressed, and weighting 2 cwt.33 (c) A, a sculptor, leaves to B " all the marble in the yard, the tools in the shop, bankers, mod tools for carving." Evidence to show whether " mod " meant models, moulds, or modelling-tools, and to show what bankers are, may be given.34 (d) Evidence may not be given to show that the word " boats," in a policy of insurance, means " boats not slung on the outside of the ship on the quarter."35 (e) A leaves an estate to K, L, M, &c, by a will dated before 1838. Eight years afterwards A declares that by these letters he meant par- ticular persons. Evidence of this declaration is not admissible. Proof 30 Illustrations (n) (o). 31 Illustration (p). 32 Smith v. Wilson, 1832, 3 B. & Ad. 728. MGorrissen v. Perrin, 1857, 2 C. B. (N. S.) 681. 34 Goblet v. Beechey, 1831, 3 Sim. 24; 2 Russ. & Myl. 624. 35 Blackett v. Royal Exchange Co., 1832, 2 C. & J. 244. Chap. XII.] TEE LAW OF EVIDENCE. 447 that A was in the habit of calling a particular person M would have been admissible.36 (/) A leaves a legacy to . Evidence to show how the blank was intended to be filled is not admissible.ST (g) Property was conveyed in trust in 1704 for the support of " Godly preachers of Christ's holy Gospel." Evidence may be given to show what class of ministers were at the time known by that name.38 (A) A leaves property to his " children." If he has both legitimate and illegitimate children the whole of the property will go to the legitimate children. If he has only illegitimate children, the prop- erty may go to them, if he cannot have intended to give it to unborn legitimate children.39 (t) A testator leaves all his estates in the county of Limerick and city of Limerick to A. He had no estates in the county of Limerick, but he had estates in the county of Clare, of which the will did not dispose. Evidence cannot be given to show that the words " of Clare " had been erased from the draft by mistake, and so omitted from the will as executed.40 (/) A leaves, a legacy to "Mrs. and Miss Bowden." No such per- sons were living at the time when the legacy was made, but Mrs. Washburne, whose maiden name had been Bowden, was living, and had a daughter, and the testatrix used to call them Bowden. Evi- dence of these facts was admitted.*! (A;) A devises land to John Hiscocks, the eldest son of John His- cocks. John Hiscocks had two sons, Simon, his eldest, and John, his second son, who, however, was the eldest son by a second marriage. The circumstances of the family, but not the testator's declarations of intention, may be proved in order to show which of the two was intended.42 36 Clayton v. Lord Nugent, 1844, 13 M. & W. 200; see 207-8. StBaylis v. A. G., 1741, 2 Atk. 239. In In re Bacon's Will, Camp v. Coe, 1886, 31 Ch. Div. 460, blanks were left in a will, and parol evidence was admitted to rebut any presumption arising from them against the primd facie claim of the executor to the residue undis- posed of. 38 Shore v. Wilson, 1842, 9 C. & F. 356, 365 et seq. 39 Wig. Ext. Ev. pp. 18 and 19, and note of caseB. 40 Miller v. Travers, 1832, 8 Bing. 244. « Lee v. Pain, 1845, 4 Hare, 251-3. 42 Doe v. Hiscocks, 1839, 5 M. & W. 363. Cf. In re Fish, Ingram v. Rayner, [18941, 2 Ch. D. 83, where F devised property to his niece, 448 A DIGEST OF [Past II. (1) A devises property to Elizabeth, the natural daughter of B. B has a natural son John, and a legitimate daughter Elizabeth. The Court may infer from the circumstances under which the natural child was born, and from the testator's relationship to the putative father, that he meant to provide for John.*3 ( m ) A leaves a legacy to his niece, Elizabeth Stringer. At the date of the will he had no such niece, but he had a great-great-niece named Elizabeth Jane Stringer. The Court may infer from these cir- cumstances that Elizabeth Jane Stringer was intended ; but they may not refer to instructions given by the testator to his solicitor, show- ing that the legacy was meant for a niece, Elizabeth Stringer, who had died before the date of the will, and that it was put into the will by a mistake on the part of the solicitor.** (n) A devises one house to George Gord the son of George Gord, another to George Gord the son of John Gord, and a third to George Gord the son of Gord. Evidence both of the circumstances and of the testator's statements of intention may be given to show which of the two George Gords he meant. 45 (o) A appointed " Percival of Brighton, Esquire, the father," one of his executors. Evidence of surrounding circumstances may be given to show who was meant, and (probably) evidence of state- ments of intention.46 (p) A leaves two legacies of the same amount to B, assigning the same motive for each legacy, one being given in his will, the other in a codicil. The Court presumes that they are not meant to be cumu- lative, but the legatee may show, either by proof of surrounding cir- cumstances, or of declarations by the testator that they were.*? E W. He had no niece so named, but had two grand-nieces of that name, one legitimate, the other illegitimate; evidence of the sur- rounding circumstances tending to show that the illegitimate niece was meant was not admitted. « Ryall v. Hannam, 1847, 10 Beav. 536. ** Stringer v. Gardiner, 1S59, 27 Beav. 35; 4 De G. & J. 4«8. 4*Doe v. Needs, 1836, 2 If. & W. 129. * r >In the goods of de Rosaz, 1877, L. R. 2 P. D. 66. t*. Mayo v. Gray, Pen. P37. Chap. XII.] THE LAW OF EVIDENCE. 459 Maryland. Third parties. — Strangers to an instrument may impeach it by parol. Henderson v. Alayhew, 2 Gill, 393. Third parties may introduce oral evidence to prove the truth, though in variance with or in contradiction of a written instrument. Groce v. Rent eh, 20 Md. 367. One not a party to a written contract may prove a parol agree- ment between himself and one of the parties to such written con- tract in variance of its terms. Font v. Sprigg, 50 Md. 551. Instrument collateral to the issue. — The rule does not apply where an instrument is only collateral to the issue, and the parol evidence is not offered to impeach a title conferred by it or to alter or im- pair the rights existing under it. Stewart v. State, 2 H. & J. 114. Pennsylvania. The contents of a release not involved in the issue may be proved by parol. Shoenberger v. Hackman, 37 Pa. 87; Scott v. Baker, 37 Pa. 330. A collateral fact recited in a contract may be proved by parol. Gilmore v. Wilson, 53 Pa. 194. 460 A DIGEST OF [Fart III. PART III. PRODUCTION AND EFFECT OF EVIDENCE. CHAPTER XIII.* BURDEN OF PROOF. Article 93. f HE "WHO AFFIRMS MUST PROVE. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence or non- existence of facts "which he asserts or denies to exist, must prove that those facts do or do not exist. 1 AMERICAN NOTE. (See also note to Article 95.) General. Authorities. — 5 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 23 et seq.; 1 Greenleaf on Evidence (15th ed.), sec. 74; Clark v. King- man, 56 111. App. 360; McCollister v. Yard, 90 la. 621, 57 N. W. 447; Com. v. Louisville <{• N. R. Co., 31 S.W. (Ky.) 473; Wildey v. Crane, 69 Mich. 17, 36 X. Vv. 734; Mask v. Allen, 17 South. (Miss.) 82: The burden of proof is upon the party holding the affirmative of the issue. Johnson v. Plowman, 49 Barb. 472; Swart- * See Xote XXXV. f See Xote XXXVI. l 1 Ph. Ev. 552; Taylor, s. 364 (from Greenleaf) ; Best, ss. 265-6; Starkie. 585-6. Chap. XIIJL] THE LAW OF EVIDENCE. 461 out v. Ranier, 143 N. Y. 499, 62 N. Y. St. R. 848, affirming 67 Hun, 241; Colburn v. Marsh, 68 Hun, 269, affirmed, on opinion below, in 144 N. Y. 657 ; Grant v. Walsh, 145 N. Y. 502, 65 N. Y. St. R. 370, reversing 81 Hun, 449; Bryant v. Gay, 88 Hun, 614, 68 N". Y. St. R. 687, affirmed in 153 N. Y. 655; New York Security d Trust Co. v. Saratoga Gas d Electric Light Co., 88 Hun, 569, affirmed in 157 N. Y. 689. See 30 App. Div. 89, appeal dismissed in 156 N. Y. 645; Caswell v. Hazard, 47 N. Y. St. R. 356, 65 Hun, 620 ; Dwyer v. Rorke, 10 App. Div. 236, 41 N. Y. Supp. 721; Continental National Bank v. Strauss, 137 N. Y. 148, 50 N. Y. St. R. 208, affirming 43 N. Y. St. R. 68; Hotopp v. Huber, 16 App. Div. 327, affirming 18 Misc. Rep. 554, dismissal of appeal denied in 153 iST. Y. 677; Matter of Elmer, 88 Hun, 290, 68 N. Y. St. R. 417; Matter of Ryalls, 74 Hun, 205, 56 N. Y. St. R. 291 ; Matter of Ryalls, 80 Hun, 459, 62 N. Y. St. R. 291 ; Patterson Gas Governor Co. v. Glenby, 4 Misc. Rep. 532, 54 N. Y. St. R. 119. Burden on affirmative. — Clark v. Kingman, 56 111. App. 360; Hin- man v. Pope, 1 Gilm. 131; Martin v. Brewster, 49 111. 306; Union Nat. Bank v. Baldenwick, 45 111. 375; Wait v. Kirby, 15 111. 200; Ross v. Utter, 15 111. 402; Clark v. Kingman, 56 111. App. 360; Hanke v. Cobeskey, 57 111. App. 267; Harley v. Harley, 67 111. App. 138; Marshall v. Cunningham, 13 111. 20; Barnes v. People, IS 111. 52; Hudson v. Miller, 97 111. App. 74 (trespass) . It is generally not necessary to prove a negative. Graves v. Bruen, 11 111. 431; Indiana M. M. F. Ins. Co. v. People, 65 111. App. 355. But where one has conveyed his property to his wife, the burden of disproving fraud rests upon him. Dillman v. Nadelhoffcr, 162 111. 625. Where both parties have equal opportunity to prove a negative it must be established by the plaintiff. G. W. R. R. Co. v. Bacon, 30 111. 347. One alleging undue influence must prove it. Roe v. Taylor, 45 111. 485. The defendant may disprove what the plaintiff must prove. Atkins v. Byrnes, 71 111. 327; Herrick v. Gary, S3 111. 85. One who charges a failure of duty must prove it. C. & G. W. Ry. Co. v. Armstrong, 62 111. App. 228. The burden is upon the plaintiff to make out his case. Kenyon v. Hampton, 70 111. App. 80. 462 A DIGEST OF [Past III. Intestacy is a fact to be proven. Lyon v. Kain, 36 111. 363. The plaintiff must show want of probable cause in malicious prose- cution. Brown v. Smith, 83 111. 291; Angelo v. Fale, 85 111. 106; Anderson v. Friend, 85 111. 135; Comisky v. Breen, 7 Brad. 369; McFarland v. Washburn, 14 Brad. 369; Israel v. Brooks, 23 111. 575; Mitchinson v. Cross, 58 111. 366; Lawrence v. Hagerman, 56 111. 68; Lundmacher v. Block, 39 111. App. 560. In libel the plaintiff must prove malice. TF/iarfon v. Wright, 30 111. App. 343, 348. The burden of proof is on the one affirming the execution of the will. Bigg v. Wilton, 13 111. 15. The ones who seek to establish a will must prove mental capacity. Carpenter v. Calvert, 83 111. 62; Trish v. Newell, 62 111. 196. Where a joint liability is alleged, the burden is on the party al- leging it to prove it. Merchant v. Manion, 97 111. App. 43. Insanity must be proved by one alleging it. Guild v. Bull, 127 111. 533; Perry v. Pearson, 135 111. 218, 227; Stevens v. Shannahan, 160 111. 330. In an action for personal injuries, the plaintiff must prove the negligence of the defendant. Illinois Cent. B. B. Co. v. Hobbs, 58 111. App. 130; T. E. d I. B. B. Co. v. Eaggmann, 58 111. App. 21. One seeking to recover for an injury must prove that he used due care. Werk v. Illinois S. Co., 54 111. App. 302. The plaintiff in a contract action must prove defendant's promise. Holmes v. Stummel, 24 111. 370; Wells v. Beynolds, 3 Scam. 191; Johnson v. Moulton, 1 Scam. 532; Boberts v. Garen, 1 Scam. 396. In a suit on a constable's bond, the plaintiff has the burden of proof. Toborg v. Toborg, 63 111. App. 426. Where the defendant pleads contract, the burden of proof as to it is upon him. Osgood v. Groseclose, 159 111. 511. One who seeks to establish a claim against an insolvent estate has the burden of proof. Crandall v. Lumber Co., 164 111. 474. Where one pleads license to land he has the burden of establish- ing it. Chandler v. Smith, 70 111. App. 658. One who pleads in abatement has the burden of proof. Schanzen- bach v. Brough, 58 111. App. 526. Fraud is to be proved by the one who pleads it. Muhlke v. Heger- ness, 56 111. App. 322 ; Sawyer v. Nelson, 59 111. App. 46 ; Elgin, etc. r Co. v. Elgin, etc., Co., 155 111. 127; Hall v. Jarvis, 65 111. 302; Boss Chap. XIII.] THE LAW OF EVIDENCE. 463 v. Sutherland, 81 111. 275; Edcy v. Fath, 4 Brad. 275; E. St. L. P. & P. Co. v. Hightoicer, 9 Brad. 297. A husband who conveys his property to his wife has the burden of showing that it was not fraudulent as to creditors. Dillman v. Na- delhoffer, 162 111. 625. If fraud is set up as a defense it must be proved. Lawrence v. Jarvis, 32 111. 305; Milk v. Moore, 39 111. 584; Stout v. Oliver, 40 111. 245. Decree of proof. — In order to obtain a judgment, the plaintiff must prove his case by a preponderance of evidence. Dickenson v. Gray, 72 111. App. 55; M'Kensie v. Stretch, 48 111. App. 410; Mitchell v, Uindman, 150 111. 538; Shinn v. Matlmey, 48 111. App. 135; Irwin v. Brown, 145 111. 199; C., P. & St. L. Ry. Co. v. Lewis, 48 111. App. 274; Smith v. Hays, 23 111. App. 244; P. d R. I. R. R. Co. v. Lane, 83 111. 448; Graves v. Coldwell, 90 111. 612; Herrick v. Gary, 83 111. 85. Unless the plaintiff has made out his case by a preponderance of evidence a judgment in his favor must be reversed. Kenyon v. Hamp- ton, 70 111. App. 80. The truth of the charge may be established in libel suits by a preponderance of evidence. Hurd's Rev. Stat., chap. 126, sec. 3, p. 1604. A tort may be shown by a preponderance of evidence. Hoener v. Koch, 84 111. 408. Fraud in inducing another to sign a note may be proved by a pre- ponderance of evidence. Kingman v. Reinemer, 166 111. 208. Preponderance does not depend necessarily upon the number of witnesses. Gotcen v. Kehoe, 71 111. 66. The word " preponderance " is defined in N. C. St. Ry. Co. v. Louis, 138 111. 9. The plaintiff need not prove his case by a clear preponderance of evidence. Taylor v. Felsing, 164 111. 331. The court need not instruct the jury in a civil case that the plain- tiff must prove his case by a clear preponderance. Gooch v. Tobias, 29 111. App. 268; Cartier v. Troy Lumber Co., 35 111. App. 449, 456. It is error to so charge. Harnish v. Hicks, 71 111. App. 551. It is erroneous to charge the jury that the plaintiff must prove his own case by a preponderance of evidence, and must also disprove the issues presented by the defendant. Schallman v. Royal Ins. Co., 94 111. App. 364. 464 A DIGEST OF [Pabt III. As to degree of proof required in specific performance, see Short v. Keiffer, 142 111. 258. Whether there is a preponderance of evidence is for the jury. Weber Wag. Co. v. Kehl, 40 111. App. 584, 587. An instruction that a jury is to be satisfied is error. Rolfe v. Rich, 149 111. 436. In a civil case, fraud may be proved by a preponderance of evi- dence. Sherwood v. National Bank, 17 111. App. 591, 593; C, N. & St. P. Ry. Co. v. Kruger, 124 111. 457; Endsley v. Johns, 120 111. 469, 475; Broun v. Bierman, 24 111. App. 574; Orient Ins. Co. v. Weaver, 22 111. App. 122. Fraud must be proved clearly. Coan v. Morrison, 34 111. App. 352, 354; Geneser v. Telgman, 37 111. App. 374, 382; Johnson v. Worth- ington, 30 111. App. 617, 625; Altmann v. Weir, 34 111. App. 617. The one alleging usury must prove it. Telford v. Garrels, 132 111. 550, 554. The burden is upon the defendant in specific performance to show the subsequent change of contract. Gray v. S. Car Mfg. Co., 127 111. 187, 199. A gift causa mortis must be proved by clear evidence. Woodburn v. Woodburn, 23 111. App. 289. The plaintiff in a civil action need not make out his case to the satisfaction of the jury. Fernandes v. M'Ginnis, 25 111. App. 165. It is error to charge a jury that one must prove facts in a civil case to the satisfaction of the jury. White v. Gale, 14 Brad. 274; Balohradsky v. Carlisle, 14 Brad. 289; Brent v. Brent, 14 Brad. 256. Proving a negative. — The burden of proof is sometimes upon the one holding the negative. Boulden v. Mdntire, 119 Ind. 574; Good- loin v. Smith, 72 Ind. 173; Carmel Natural Gas Co. v. Small, 150 Ind. 427; O'Kane v. Miller, 3 Ind. App. 136; Archibald v. Long, 144 Ind. 451; Castle v. Bell, 145 Ind. 8; City of New Albany v. Endres, 143 Ind. 192; Nash v. Hall, 4 Ind. 444; Hall v. Nash, 11 Ind. 34. When a right depends upon establishing a negative fact, the party asserting it must prove it. O'Kane v. Miller, 3 Ind. App. 136, 137; New Albany v. Andres, 143 Ind. 192; Carmel Natural Gas Co. v. Small, 150 Ind. 427; Nash v. Hall, 4 Ind. 444; Hall v. Nash, 11 Ind. 34; Boulden v. Mdntire, 119 Ind. 574, 581. Right to open and close. — The one who has the burden of proof has the right to open and close. Ronyer v. Miller, 16 Ind. App. 519; Starnes v. Schofield, 5 Ind. App. 4. Chap. XIII.] THE LAW OF EVIDENCE. 465 On plaintiff. — The plaintiff generally has the burden of proof. Turner v. Cool, 23 Ind. 56; Zook v. Simonson, 72 Ind. 83; Toledo, etc., R. R. Co. v. Stithorn, 16 Ind. 225; Moore v. Allen, 5 Ind. 521; Hand v. Taylor, 4 Ind. 409; Levi v. Allen, 15 Ind. App. 38; Smith V. Downing, 6 Ind. 374. If the plaintiff must produce any proof he has the right to open and dose. Camp v. Brown, 48 Ind. 575; Fetters v. Muncie, 34 Ind. 251; Hyatt v. Clements, 65 Ind. 12. The right to open and close is not taken away from the plaintiff by filing an argumentative denial. Rothrock v. Perkinson, 61 Ind. 39. If the plaintiff fail to prove some essential fact, and the defend- ant supplies the omission, it is sufficient. Astley v. Carpon, 89 Ind. 167, 175. On defendant. — The defendant sometimes has the burden of proof. Blackledge v. Pine, 28 Ind. 466; Cunningham v. Hoff, 118 Ind. 263; Hayes v. Fitch, 47 Ind. 21; Zook v. Simonson, 72 Ind. 83. The defendant has the burden of proving his affirmative defenses. Baker v. Leathers, 3 Ind. 558; Peck v. Hunter, 7 Ind. 295; State v. Vincennes Univ., 5 Ind. 77; Farbach v. State, 24 Ind. 77; Balke v. State, 24 Ind. 85; Tull v. David, 17 Ind. 377; Gaul v. Flemming, 10 Ind. 253; Smelscr v. Wayne, etc., Co., 82 Ind. 417, 420. By a preponderance of the evidence. Phenix Ins. Co. v. Picket, 119 Ind. 155, 163; McLees v. Felt, 11 Ind. 218. An argumentative denial does not shift the burden of proof. Bishop v. State ex rel., 83 Ind. 67, 74. Under a general denial all the evidence need not be negative in character, but it must be negative in its effect. Hess v. Union State Bank, 156 Ind. 523. When the plaintiff does not have to introduce any proof, the de- fendant has the burden of proof as to his affirmative defenses and may open and close. Lindley v. Sullivan, 133 Ind. 588; Goodrich v. Friedersdorff, 27 Ind. 308; Indiana Board v. Gray, 54 Ind. 91; Judah v. Trustees, 23 Ind. 272; Shank v. Fleming, 9 Ind. 189; Hamlin v. Nesbit, 37 Ind. 284; Zehner v. Kepler, 16 Ind. 290; Donohoe v. Rich, 2 Ind. App. 540. Compare McCloskey v. Davis, 8 Ind. App. 190. The plaintiff has the burden of proving property in himself in replevin where he pleads that the goods are his property. Noble v. Epperly, 6 Ind. 414 ; Turner v. Cool, 23 Ind. 56. 30 466 A DIGEST OF [Fart III. The burden of proving payment is upon the defendant. Clifford v. Smith, 4 Ind. 377. If the defendant pleads fraud or failure of consideration he has the burden of proof. Toicsey v. Shook, 3 Blackf. 267; Rogers v. Worth, 4 Blackf. 186; Thomas v. Quick, 5 Blackf. 334; Cook v. Cunningble, 4 Ind. 221. Compare Flack v. Cunningham, 1 Blackf. 107; Fisher v. Fisher, 8 Ind. App. 665.; Tenbrook v. Brown, 17 Ind. 410; Stewart V. English, 6 Ind. 176. Or lack of capacity in a donor or testator. Blough v. Parry, 144 Ind. 463; Teegarden v. Leicis, 145 Ind. 98. Or infancy. Pitcher v. haycock, 7 Ind. 398. The burden of proof is on the defendant in a cross-complaint. Fitzgerald v. Qoff, 99 Ind. 28, 35. On a counterclaim, the defendant has the right to open and close. McCormick v. Cray, 100 Ind. 285; Schee v. McQuilken, 59 Ind. 269. In slander and libel, the defendant who justifies has the right to- open and close. Heilman v. Shanklin, 60 Ind. 424. Statutes. — Statutes which merely declare statutory presumptions affecting the burden of proof are valid. Voght v. State, 124 Ind. 358, 362. As to burden of proof under section 2666, Burns, 1901, see Archi- bald v. Long, 144 Ind. 451. Statutes changing the burden of proof are strictly construed. White v. Flynn, 23 Ind. 46. New Jersey. General authorities. — Trenton Ins. Co. v. Johnson, 4 Zab. 576 ; American Ins. Co. V. Anderson, 33 N. J. L. 151; Kane v. Hibernia Ins. Co., 38 N. J. L. 441; Winans V. Winans, 19 N. J. Eq. 220; Butts v. Hoboken, 38 N. J. L. 391; Feldman v. Gamble, 26 N. J. Eq. 494; Eduxirds v. Elliott, 36 N. J. L. 449; S. C, 21 Wall. 532 > Fischer v. Fischer, 18 N. J. Eq. 300. Burden of proving notice of an unrecorded deed is on the party alleging notice. Coleman v. Barklew, 27 N. J. L. 357; Lewis v. Hall r 7 N. J. Eq. 475; Blair v. Ward, 10 N. J. Eq. 119; Holmes v. Stout, 10 X. J. Eq. 419; Yreeland v. Claflin, 24 N. J. Eq. 313; Buchanan v. Rowland, 2 South. 732. Chap. XIIL] THE, LAW OF EVIDENCE. 467 Burden of proving that the report of a master is erroneous is on the one excepting. Bank v. Sprague, 23 N. J. Eq. 81. Burden of proving mental incapacity is on one alleging it. Sicayze v. Swayze, 37 N. J. Eq. 180. Burden may be on the defendant. — Burden of proving payment as a defense is on the defendant. McKinney v. Slack, 19 N. J. Eq. 164; Smith V. Burnet, 17 N. J. Eq. 40. In trespass, if the defendant avers property in him the burden of proving it is on him. Ouicalt v. Burling, 25 N. J. L. 443. In suit by an assignee to foreclose a mortgage, the burden is ore the defendant to prove that plaintiff was not a bona fide purchaser- Banbury v. Robinson, 14 N. J. Eq. 213. Burden of proof in bastardy cases. — G. S. 1895, " Bastards," 19. Maryland. One alleging a contract sustains the burden of proving it by a preponderance of the evidence. Ollendorff v. Kaune, 66 Md. 495.. Statutes. — Certificate of a judge made conclusive evidence of the sufficiency of articles of incorporation. P. G. L. 1888, art. 23, sec. 43. Constable's receipt of a claim for collection made prima facie evi- dence against him in a suit on his bond. P. G. L. 18S8, art. 20, sec. 20. Protest of a bill or note made prima facie evidence. P. G. L. 1888, art. 13, sec. 6. Pennsylvania. Burden of proving a negative may be on the plaintiff. Hunt v. Todd, 18 Pa. 316. One who alleges a breach of covenant must prove it affirmatively. Chambers V, Jaynes, 4 Pa. 39; Hubbard v. Wheeler, 17 Pa. 425; Sartwell v. Wilcox, 20 Pa. 117. Even though the party alleging it be the defendant. Evans v. Fegely, 67 Pa. 370. The one alleging failure of consideration of a note must prove it. Schneider v. Bechtold, 3 Phila. 50. 468 A DIGEST OF [Part III. Article 94.* presumption of innocence. If the commission of a crime is directly in issue in any proceeding, criminal or civil, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. Illustrations. (a) A sues B on a policy of fire insurance. B pleads that A burnt down the house insured. B must prove his plea as fully as if A were being prosecuted for arson.2 (6) A sues B for damage done to A's ship by inflammable matter loaded thereon by B without notice to A's captain. A must prove the absence of notice.3 (c) The question in 1819 is, whether A is settled in the parish of a man to whom she was married in 1813. It is proved that in 1812 she was married to another person, who enlisted soon afterwards, went abroad on service, and had not been heard of afterwards. The burden of proving that the first husband was alive at the time of the second marriage is on the person who asserts it. 4 AMERICAN NOTE. General. Authorities. — 2 Wharton on Evidence, sec. 1246 ; 2 Greenleaf on "Evidence (15th ed.), sees. 408, note, 426, notes; Childs v. Merrill, «6 Vt. 302. The presumption of innocence casts the burden of proving guilt * See Note XXXVI. 2 Thurtell v. Beaumont, 1823, 1 Bing. 339. 8 lYilliams v. East India Co., 1802, 3 Ea. 192, 198-9. -» R. v. Ttoyning, 1819, 2 B. & Aid. 386. Chap. XIII.] THE LAW OF EVIDENCE. 469 upon the State, but it does no more. While it calls for evidence from the State, it is not itself evidence for the accused. State v. Smith, 65 Conn. 283. The court, where no requests were made by the prisoner, charged that it was incumbent upon the State to satisfy the jury beyond a reasonable doubt of the guilt of the accused, but omitted to say that the accused was presumed to be innocent until proven guilty, and omitted also to define " reasonable doubt." Held, that the de- fendant had no just ground for complaint. State v. Smith, 65 Conn. 283. Where a husband is charged with cruelty or violence towards his wife, there is a legal presumption of his innocence, arising from their relation, and the mutual affection by which it is commonly accompanied. State v. Green, 35 Conn. 205. Criminal cases. — Miles v. U. S., 103 U. S. 304; Nevling v. Com., 98 Pa. St. 322; People v. Paulsell, 115 Cal. 6; Morgan v. State, 48 O. St. 371; Wade v. State, 71 Ind. 535; Jameson v. People, 145 111. 357; Porterfield v. Com., 91 Va. 801; People v. Ezzo, 104 Mich. 341; Com., v. Goodtoin, 14 Gray (Mass.), 55; Com. v. Kimball, 24 Pick. (Mass.) 366; Com. v. Hardiman, 9 Gray (Mass.), 136; Com. v. Mc- Eie, 1 Gray (Mass.), 61; State v. Schweitzer, 57 Conn. 539; Hoyt v. Banbury, 69 Conn. 348. Civil cases. — The rule in this country generally is that where crime is imputed in a civil case it is enough to prove it by prepon- derance of evidence. 2 Greenleaf on Evidence (15th ed.), sees. 408, note, 426, notes; Baird v. Abbey, 73 Mich. 347; Smith v. Burns, 106 Mo. 694; Atlanta Journal v. May son, 97 Ga. 640; U. S. Express Co. v. Jenkins, 73 Wis. 471; Turner v. Hardin, 80 la. 691; Continental Ins. Co. v. Jachnichen, 110 Ind. 59; Lindley v. Lindley, 68 Vt. 421; Nelson v. Pierce, 18 R. I. 539; Mead v. Husted, 52 Conn. 56; Roberge v. Burnham, 124 Mass. 277. Contra (following the general English rule), Grimes v. Hilliary, 150 111. 141; Williams v. Dickenson, 28 Fla. 90. In an action brought on the statute to recover treble value for property feloniously taken, the court below held, that it was not enough for the plaintiff to produce evidence sufficient for a recovery in an ordinary civil action, but that he was bound to prove the felonious taking " beyond a reasonable doubt, in the same manner as in a criminal prosecution." Upon motion of the plaintiff, a new trial was granted. Munson v. Atwood, 30 Conn. 103-107. 470 A DIGEST OF [Part IH. Crime not in issue. — Last paragraph of text. Colorado Coal Co. v. U. 8., 123 U. S. 307; Davis v. Davis, 123 Mass. 590. Presumption of innocence. — Such a presumption exists in all cases. A T . Y. & Brooklyn Ferry Co. v. Moore, 18 Abb. N. C. 106, 102 N. Y. €67, 1 X. Y. St. R. 374, reversing 32 Hun, 29; Green v. Crane, 68 N. Y. Supp. 248, 57 App. Div. 9. Preponderance defined. — Preponderance of evidence is the produc- tion of evidence by the plaintiff which when weighed with the oppos- ing evidence has the greater convincing force and produces a greater probability in plaintiff's favor. Hoffman v. Loud, 111 Mich. 156. See also Strand v. C. & 11*. M. By. Co., 67 Mich. 380, 34 N. W. 712. New Jersey. Authority. — State v. Wilson, Coxe, 439. Criminal cases. — In criminal cases guilt must be proved beyond a reasonable doubt. Gardner v. State, 55 X. J. L. 17. Reasonable doubt defined. Donnelly v. State, 26 X. J. L. 614. In prosecutions for seduction the good repute of the prosecutrix for chastity must be established beyond a reasonable doubt. State V. Brown, 64 N. J. L. 414; Zabriskie v. State, 43 X. J. L. 646. . Insanity as a defense. — The State does not have the burden of proving sanity beyond a reasonable doubt. Graves v. State, 45 N. J. L. 203. Burden of proving insanity is on the accused. The jury must be satisfied of the insanity beyond a reasonable doubt. State v. Spencer, 1 Zab. 197. In civil cases. — The commission of a crime may be proved by a preponderance of the evidence. Kane v. Hibernia Ins. Co., 39 X. J. L. 697; Kentner v. Kline, 41 X. J. Eq. 422. Illustration (a). — Rule contra. Kane v. Hibernia Ins. Co., 39 X. J. L. 697. Civil case where more than mere preponderance required. Cake v. Shu 11, 45 X. J. Eq. 208. Reformation of a written instrument. Green v. Stone, 54 X. J. Eq. 387. Maintaining defense of usury. Taylor v. Morris, 22 X. J. Eq. 606. Said to require proof beyond a reasonable doubt. Hupsch v. Resch, 45 X. J. Eq. 657. Proof of title by adverse possession required to be beyond a reasonable doubt. Rowland v. Updyke, 2S X. J. L. 101. Divorce cases. — Adultery on the part of the defendant in divorce must be proved beyond a reasonable doubt. The court must be Chap. XIII.] THE LAW OF EVIDENCE. 471 satisfied. Berckmans v. Berckmans, 17 N. J. Eq. 453. The proof must be entitled to and command belief. Clare v. Clare, 19 N. J. Eq. 37. Maryland. Authorities. — Corpus delicti must be proved beyond a reasonable doubt. Norwood V. iState, 45 Md. 68. Criminality in criminal cases must be established to a moral cer- tainty. B. d 0. R. Co. v. Shipley, 39 Md. 251. Civil cases. — Moral delinquency in civil cases must be proved by •evidence admitting of practically no reasonable doubt. Corner v. Pendleton, 8 Md. 337. Preponderance of the evidence is sufficient in civil cases. McBee v. Fulton, 47 Md. 403. Proof required for reformation of a written instrument. Insur- ance Co. v. Ryland, 69 Md. 437. Pennsylvania. Criminal cases. — Nevling v. Com., 98 Pa. 322. Guilt must be proved beyond a reasonable doubt. Com. v. Wi/rme- more, 1 Brewst. 356; Com. v. Tack, 1 Brewst. 511; Com. v. H anion. 8 Phila. 401; Com. v. Irring, 1 Leg. Chron. 69; Com. v. Harman, 4 Pa. 274; Insurance Co. v. Usaw, 112 Pa. 89; Mclleen v. Com., 114 Pa. 300; Com. v. Cook, 166 Pa. 193. The corpus delicti need not be proved by " overwhelming proof.*' merely beyond a reasonable doubt. Zcll v. Com., 94 Pa. 258. Defenses. — Burden of proving insanity by a fair preponderance of the evidence is on the accused. Com. v. Wireback, 190 Pa. 13S: €om. v. Bezek, 168 Pa. 603; Com. v. Heidler, 191 Pa. 375; Ortwein v. Com., 76 Pa. 414; Lynch v. Com., 77 Pa. 205. But he need not prove it "beyond a reasonable doubt." Meyers v. Com.. 83 Pa. 131. The same rule applies to an alibi. Rudy v. Co7ti., 128 Pa. 500. Setting up an alibi as a defense does not change the burden of proof. Fife v. Com,, 29 Pa. 429: Briccland v. Com.. 74 Pa. 463. In rape, the burden is on the defendant to show that the girl is not of good repute. Com, v. Allen, 135 Pa. 483. Where defendant gives evidence showing self-defense, if he raises a reasonable doubt of guilt he should be acquitted. Tiffany v. Com.. 121 Pa. 165. Proof of good character may raise a reasonable doubt of guilt. Becker v. Com,. 9 Atl. 510. 472 A DIGEST OF [Pabt IIL The doubt must be serious and substantial to justify acquittal. Com. V. Harman, 4 Pa. 274. Definition of " reasonable doubt." Com. v. Mudgett, 174 Pa. 211. In civil cases. — The commission of crime may be established by a mere preponderance of the evidence in civil cases. Fire Ins. Co.. v. Usaw, 112 Pa. 80; Braunschweiger v. Waits, 179 Pa. 47. Where a libelous article charges a crime, the presumption of innocence establishes prima facie the want of probable cause for publishing the charge. Bryant v. Times, 192 Pa. 585. In action for alienation of a wife's affections, adultery need not be established beyond a reasonable doubt. Sieber v. Pettit, 200 Pa. 58. Sometimes more than a mere preponderance of the evidence is required in civil cases; as in actions to reform a written instru- ment. National Bank v. Hartman, 147 Pa. 558. To set aside a written instrument for fraud. Cummins v. Hurlbutt, 92 Pa. 1G5. To attack the acknowledgment of a deed. Lewars v. Weaver, 121 Pa. 268. To overcome presumption of payment raised by lapse of twenty years, the proof must be of a " satisfactory and convincing char- acter." Gregory v. Com., 121 Pa. 611. Illustration (a). — Rule contra. Somerset Co. Ins. Co. v. Usaw,. 112 Pa. 80. Article 95. on "whom the general burden of proof lies. The burden of proof in any proceeding lies at first on that party against whom the judgment of the Court would be given if no evidence at all were produced on either side, regard being had to any presumption which may appear upon the pleadings. As the proceeding goes on, the burden of proof may be shifted from the party on whom it rested at first by hi3 proving facts which raise a presumption in his favour. 6 » 1 Ph. Ev. 552 ; Taylor, ss. 365, 366 ; Starkie, 586-7 & 748 ; Best, p. 268 : and see Abrath v. N. E. Ry., 1883, 11 Q. B. D. 440, especially the judgment of Bowen, L.J., 455-462. Chap. XIII.] THE LAW OF EVIDENCE. 473 Where there are conflicting presumptions, the case is the same as if there were conflicting evidence. 6 Illustrations. (a) It appears upon the pleadings that A is indorsee of a bill of ex- change. The presumption is that the indorsement was for value, and the party interested in denying this must prove it. 7 (6) A, a married woman, is accused of theft and pleads not guilty. The burden of proof is on the prosecution. She is shown to have been in possession of the stolen goods soon after the theft. The burden of proof is shifted to A. She shows that she stole them in the presence of her husband. The burden of proving that she was not coerced by him is shifted to the prosecutor.8 (c) A is indicted for bigamy. On proof by the prosecution of the first marriage, A proves that at the time he was a minor. This throws on the prosecution the burden of proving the consent of A's parents.^ (d) A deed of gift is shown to have been made by a client to his solicitor. The burden of proving that the transaction was in good faith is on the solicitor.^ (e) It is shown that a hedge stands on A's land. The burden of proving that the ditch adjacent to it was not A's also is on the person who denies that the ditch belongs to A.n (f) A proves that he received the rent of land. The presumption is, that he is owner in fee simple, and the burden of proof is on the person who denies it.* 2 (g) A finds a jewel mounted in a socket, and gives it to B to look at. B keeps it, and refuses to produce it on notice, but returns the socket. The burden of proving that it is not as valuable a stone of the kind as would go into the socket is on B.*3 6 See Illustration (i). 7 Mills v. Barber, 1836, 1 M. & W. 425. 8 1 Russ. Cri. 146. $R. v. Butler, 1803, 1 R. & R. 61. 10 1 Story, Eq. Juris., s. 310, n. 1. Quoting Hunter v. Atkins, 1832, 3M. &K. 113. " Guy v. West, 1808, Selw. N. P. 1244. 12 Doe v. Coulthred, 1837, 7 A. & E. 235. 13 Armoury v. Delamirie, 1721, 1 S. L. C. 353. 474 A DIGEST OF [Pabt III. (h) A sues B on a policy of insurance, and shows that the vessel insured went to sea, and that after a reasonable time no tidings of her have been received, but that her loss had been rumoured. The burden of proving that she has not foundered is on B. 14 (i) Z in 1864 married A. In 1868 he was convicted of bigamy in having in 1868 married B during the life of A. In 1879 he married C. In 1880, C being alive, he married D, and was prosecuted for bigamy in marrying D in the lifetime of C. The prisoner on his second trial proved the first conviction, thereby proving that A was living in 1868. No further evidence was given. A's being alive in 1868 raises a pre- sumption that she was living in 1879. Z's marriage to C in 1879 being presumably innocent, raises a presumption that A was then dead. The inference ought to have been left to the jury.13 AMERICAN NOTE. (See also note to Article 93.) General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 74, and notes; 5 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 21 et seq. The burden of proof does not shift; the weight of evidence does. Scott v. Wood, 81 Cal. 398; Atkinson v. Goodrich Trans. Co., 69 Wis. 5; Tiffany v. Com., 121 Pa. St. 165; State v. Wingo, 66 Mo. 181; Lgnew v. U. S., 165 U. S. 36; Clark v. Hills, 67 Tex. 141; Tarbox v. Eastern Steamboat Co., 50 Me. 339; Central Bridge v. Butler, 2 Gray (Mass.), 130; Phillips v. Ford, 9 Pick. (Mass.) 39; Powers v. Rus- sell. 13 Pick. (Mass.) 69; Starratt v. Mullen, 148 Mass. 570. The term " burden of proof " is used in two senses, viz., to indi- cate the burden of going forward if the allegations of the pleader be met by a traverse, and to denote the duty to meet and rebut some pieces of evidence introduced by the adverse party by proof to over- bear it in the mind of the trier. Taking the term in the former sense, the burden of proof never shifts. Baxter v. Camp, 71 Conn. 252; Miles's Appeal, 68 Conn. 242-244. See, also, Pease v. Cole, 53 Conn. 71. In malicious prosecution the court charged that malice might be inferred from want of probable cause, but refused to charge that 14 Roster v. Reed, 1826, 6 B. & C. 19. 16 R. v. Willshire, 1881, 6 Q. B. D. 366. Chap. XIII.] THE LAW OF EVIDENCE. 475 the burden of proof shifted from the plaintiff to the defendant. Held, correct. Thompson v. Beacon Valley Rubber Co., 56 Conn. 499. Burden of proof does not shift. — The giving of prima facie evi- dence of a fact does not shift the burden of proof; it is still upon the party holding the affirmative, after all the evidence is in. Heine- mann v. Heard, 62 N. Y. 448, reversing 2 Hun, 324, 4 S. C. 666 ; Be- derich v. McAllister, 49 How. Pr. 351; People v. Cassata, 6 App. Div. 386, 39 N. Y. Supp. 641. Instances. — The agreement as a necessary element in a common- law marriage may be proved by the same circumstances in a criminal as in a civil suit. Swartz v. State, 7 Circ. Dec. 43, 13 Ohio Circ. Ct. 63. Degree of proof. — In civil cases a preponderance of evidence is enough. Cunningham v. Hoff, 118 Ind. 263. An affirmative defense is to be established by a preponderance of evidence. Shufflebarger v. Ollemman, 25 Ind. App. 521; Laird v. Bavidson, 124 Ind. 412, 414. A preponderance of evidence does not involve a preponderance of the number of witnesses. McLccs v. Felt, 11 Ind. 218; Rudolph v. Lane, 57 Ind. 115; Wray v. Tindall, 45 Ind. 517. Preponderance enough. — In a suit for libel charging crime, justifi- cation is established by preponderance of evidence and does not need to be proved beyond a reasonable doubt. In a suit for slander, the words imputing the commission of a felony, a preponderance of evi- dence is all that is necessary to establish the plaintiff's case. Oiven v. Beicey, 107 Mich. 67; Finley v. Widner, 112 Mich. 230. Evidence that is not a preponderance, but which is clear and satisfactory, must justify the reformation of a written contract upon mistake in drafting. Burns v. Coskey, 100 Mich. 94; Berrmersch v. Linn, 101 Mich. 64; Gumbert v. Trensch, 103 Mich. 543. New Jersey. Presumptions. — Presumption of fact and presumption of law de- fined. Gulick v. Loder, 13 N. J. L. 6S, 72; Snediker v. Everingham. 27 N. J. L. 150, 153. Instances of proof sufficient to raise a presumption. — Conclusive presumption that debt is paid after a lapse of twenty years. Blue v. Everett, 55 N. J. Eq. 329. Presumption is that a will found canceled was canceled inten- tionally, and this is not overcome by proof of a declaration of the 476 A DIGEST OF [Pabt III. testator that his will was all right. Smock v. Smock, 11 N. J. Eq. 156; Matter of White, 25 N. J. Eq. 501. When husband pays for land and has it conveyed to his wife, a. gift is presumed. Whitley v. Ogle, 47 N. J. Eq. 67. Claimant under a deed presumed to have taken without notice of prior unrecorded deeds. Roll v. Rea, 50 N. J. L. 265. Possession of a negotiable instrument is prima facie evidence of ownership. Halstcd v. Colvin, 51 N. J. Eq. 387, 52 N. J. Eq. 339. Possession raises presumption of ownership and throws burden of proof on one asserting ownership in others. Harris v. Kirkpatrick, 36 N. J. L. 526 ; reversing S. C, 35 N. J. L. 392 ; Hopkins v. Chand- ler, 2 Harr. 299. Circumstances raising the presumption that a deed from husband to wife has been delivered. Vought v. Vought, 50 N. J. Eq. 177. Burden of proving absence of fraud. — Where plaintiff proves that certain securities were obtained from him by fraud or felony the burden is cast upon the defendant to show that he was a bona fide holder for value, ^¥ard Sav. Bank v. First Nat. Bank, 48 N. J. L. 513. Proof that a creditor was such at the time of a conveyance for an inadequate consideration raises a conclusive presumption of fraud. Gardner v. Kleinke, 46 N. J. Eq. 90; Bouquet v. Heyman, 50 N. J. Eq. 114; Manning v. Riley, 52 N. J. Eq. 39. Possession by the vendor raises a presumption of fraud and shifts the burden of proof from the creditor to the vendee. Runyon V. Groshon, 12 N. J. Eq. 86. When it is shown that a negotiable note was given without con- sideration the holder must prove that he was a bona fide purchaser for value. Gilbert v. Duncan, 29 N. J. L. 521 ; reversing S. C, 29 N. J. L. 133; Bank v. Savings Institution, 33 N. J. L. 170. Degree of proof. — Evidence to show that ordinary words have been used in a peculiar or technical sense should be clear, accurate, and convincing. Smith v. Lunger, 64 N. J. L. 539. Proof of adultery in divorce cases must be clear and direct and be such as to command belief. Clare v. Clare, 19 N. J. Eq. 37. Doctrine of res ipsa loquitur. — Proof that electricity did escape from the rails is presumptive proof of negligence. Res ipsa loquitur. Trenton R. Co. v. Cooper, 60 N. J. L. 219. Circumstances under which a presumption of negligence arises from mere proof of the injury. Res ipsa loquitur. Excelsior Elee. Co. v. Sweet, 59 N. J. L. 441 ; reversing S. C, 57 N. J. L. 224. Chap. XIII.] THE LAW OF EVIDENCE. 477 Explosion; reasonable inference of negligence. Bahr v. Lombard, Ayres & Co., 53 N. J. L. 233. Fall of an electric street lamp; presumption of negligence. Ex- celsior Elec. Co. v. Sweet, 57 N. J. L. 224. Injury from falling brick. Sheridan v. Foley, 58 X. J. L. 230. Burden of proving insanity. — The defendant setting up insanity as a defense must establish it by a preponderance of the evidence. The State has not the burden of proving sanity beyond a reasonable doubt. Graves v. Slate, 45 N. J. L. 203. An existing state presumed to continue. — A partnership having existed, it is presumed to continue. Princeton Co. v. Gulick, I Harr. 161. See Farmers' Bank v. Green, 30 N. J. L. 316. It is presumed that one who enters as a tenant continues a ten- ant, and clear proof is required to overcome the presumption. Cole v. Potts, 10 N. J. Eq. 67. Possession once shown is presumed to continue. Watson v. Kelty, 1 Harr. 517. Lucid interval. — Insanity at one time having been proved, the burden of proving a lucid interval is on the one claiming by virtue of the insane person's act. Den. v. Moore, 2 South. 470; Whitenack v. Stryker, 2 N. J. Eq. 8; Goble v. Grant, 3 N. J. Eq. 629; Turner v. Cheesman, 15 N. J. Eq. 243; State v. Spencer, 1 Zab. 196. Maryland. Authorities. — Presumption that an indorsee is a bona fide pur- chaser for value. McCorker v. Banks, 84 Md. 292. Proof of execution of a will plus the presumption of sanity make out a prima facie case. Higgins v. Carlton, 28 Md. 115. In an action for damages the burden is on the plaintiff to show that the defendant's act was prima facie wrongful, and then on the defendant to show justification or excuse. Tucker v. State, 89 Md. 471. The presumption is that an existing state of affairs continues. Hammond's Lessee v. Inloes, 4 Md. 138. • If an act may be either rightful or wrongful according to the circumstances, the presumption is that it was rightful. Brewer v. Boircrsox, 92 Md. 567. Degree of proof. — The proof of the contents of a lost will must be conclusive and satisfactory. Rhodes v. Vinson, 9 Gill, 169. 478 A DIGEST OF [Past III. To show a gift mortis causa, proof of delivery must be clear and decisive. Whalen v. Milholland, 89 Md. 199. The usual rule in civil cases is that a fact need be proved only by a preponderance of the evidence. Myers v. King, 42 Md. 65 ; B. <£ 0. li. Co. v. Shipley, 39 Md. 251. Where the fact to be proved involves moral delinquency the evi- dence should be so strong as to overcome any presumption of inno- cence. Corner v. Pendleton, 8 Md. 337. Res ipsa loquitur. — Proof of an injury caused by the falling of cross ties from a moving train raises a presumption of negligence. Howser v. Railroad Co., 80 Md. 146. The falling of a roof of a building under construction is primw facie proof of negligence. Hearn v. Quillen, 94 Md. 39. Proof of the breaking of an axle of a car raises a presumption of negligence and throws the burden of proof on the defendant. West- ern Md. E. Co. v. Shirk, 95 Md. 637. No presumption of negligence arises from the mere breaking of machinery. South Baltimore Car Works v. Shaefer, 96 Md. 88. Pennsylvania. Presumptions. — When a presumption of negligence has arisen, it remains until overthrown by the opposite party. Kane v. Phila- delphia, 196 Pa. 502. Laws of another State are presumed to be the same as the leaf fori. Musser v. Stauffer, 178 Pa. 99. When a husband buys property and takes title in his own name, the legal presumption is that he furnished the money. Martin's Estate, 181 Pa. 378. No presumption that one who died under twenty-one left no issue. Clark v. Trinity Church, 5 W. & S. 266. Payment. — Presumption that a bond has been paid arises after a lapse of twenty years. White v. White, 200 Pa. 5G5 ; Devereux's- Estate, 184 Pa. 429. No matter how, solemnly a debt may be evidenced the presumption of payment arises after twenty years. Hummel v. Lilly, 188 Pa. 463. Presumption of payment arising from lapse of time is a rule of eviflenre. and applies against the State. Ash's Estate. 202 Pa. 422. A receipt in full raises a presumption of payment and throws Chap. XIII.] THE LAW OF EVIDENCE. 479 the burden of overcoming it on the one alleging that a sum is due. It/wads' Estate, 189 Pa. 460; MacDonald v. Piper, 193 Pa. 312. The burden of proving payment is on the party alleging it, and does not shift merely because he produces certain receipts. If these are alleged to be forgeries, the presumption of innocence does not avail to put upon the opposite party the burden of proof. Shrader v. Glass Co., 179 Pa. 623. Illustration (a). — Indorsee of a bill or note is presumed to be a bona fide purchaser for value. Gray v. Bank, 29 Pa. 365; Lerch Hardware Co. v. Bank, 109 Pa. 240. Where evidence has been given indicating that a conveyance was fraudulent, the burden is thrown on the grantee to show that he was a bona fide purchaser for value. Rogers v. Hall, 4 Watts, 359 ; Clark v. Depew, 25 Pa. 509. Illustration (d). — Attorney and client. Cuthbertson's Appeal, 97 Pa. 163. Proof of a fiduciary relation may throw the burden of proving absence of undue influence on the proponent of a will. Miller's Estate, 179 Pa. 645. Illustration (g). — McCown v. Quigley, 147 Pa. 307. Proof required to make a prima facie case. — Proof of the execu- tion of a will plus the presumption of sanity make out a prima facie ease. Grubbs v. McDonald, 91 Pa. 236. The owner of goods lost by a carrier makes out a prima facie case by merely showing the fact of loss of the goods. Buck v. Rail- road Co., 150 Pa. 170. Res ipsa loquitur. — A presumption of negligence may arise from mere proof that an accident occurred. Shafer v. Lacock, 168 Pa. 497 (house set on fire) ; Madara v. Electric Ry. Co., 192 Pa. 542 (collision of cars) ; Campbell v. Traction Co., 201 Pa. 167. Leaving a live wire on the street raises presumption of negligence. Devlin v. Light Co., 192 Pa. 188. A presumption of negligence may arise from the mere fact of the explosion of a boiler. Baran v. Reading Iron Co., 202 Pa. 274. Instances where no such presumption arose. Mixter v. Imp. Coal Co., 152 Pa. 395; Huey v. Gahlenbeck, 121 Pa. 238; Earle v. Arbogast. ISO Pa. 409 (explosion) ; Bamford V. Traction Co., 194 Pa. 17 (fall of a pole). Shifting burden of proof. — The burden of proof does not shift ; the weight of evidence does. Tiffany v. Com., 121 Pa. 165. 480 A DIGEST OF [Part III. Burden said to shift when one makes out a prima facie case. Aiken v. Miller, 7 Pitts. L. J. 140. Proof that a criminal process was made use of to collect a debt raises a presumption of want of probable cause and malice and shifts the burden of proof. Wenger v. Phillips, 195 Pa. 214. If an assignment is under seal a consideration will be presumed, but evidence of mala fides shifts the burden. Hancock's Appeal, 34 Pa. 155. Degree of proof. — To establish a parol trust the evidence must be clear and convincing. Fowler v. Webster, 180 Pa. 610; Braun V. Church, 198 Pa. 447; Van Storch v. Van Storch, 196 Pa. 545. Evidence to establish a resulting trust must satify the mind and conscience of the court sitting as a chancellor. Fidelity Co. v. Moore, 194 Pa. 617. " Very clear proof " required before equity will grant relief on the ground of mistake. Ridgway's Account, 206 Pa. 5S7; William- son v. Carpenter, 205 Pa. 164; Ahlborn v. Wolff, 118 Pa. 242; Bank v. Hartman, 147 Pa. 558. Degree of proof required to alter the terms of a written contract. Ott v. Oyer's Exr., 106 Pa. 6; Thomas v. Loose, 114 Pa. 35; Jones v. Backus, 114 Pa. 120; North v. Williams, 120 Pa. 109; Ferguson v. Rafferty, 128 Pa. 337; Claybaugh v. Goodchild, 135 Pa. 421. Testimony to alter or set aside a written contract must be clear, precise, and indubitable. Axle Co. v. Leyda, 188 Pa. 322; Earrold v. McDonald, 194 Pa. 359; Streator v. Paxton, 201 Pa. 135; Stitch's Estate, 201 Pa. 305. Evidence to reform a written contract must be clear, precise, and indubitable. Schotte v. Meredith, 197 Pa. 496. Evidence to alter or contradict a written contract must be equivn- lent to the testimony of two credible witnesses. Beckett v. Allison, 188 Pa. 279. It is error to allow slight evidence of fraud to overturn a writing. The evidence must be clear, precise, and indubitable. De Douglas v. Traction Co., 198 Pa. 430. Evidence that a lost deed existed and that it was delivered, must be clear and satisfactory. In re Nicholls, 190 Pa. 308. A wife must prove by evidence not admitting of doubt that prop- erty seized on execution while in the apparent possession of her husband is really her property. Eavenson v. Pownall, 182 Pa. 587. €hap. XIII.] THE LAW OF EVIDENCE. 481 Article 96. burden of proof as to particular fact. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proving the fact shall lie on any particular person; 16 but the burden may in the course of a case be shifted from one side to the other, and in considering the amount of evidence necessary to shift the burden of proof the Court has regard to the opportunities of knowledge with respect to the fact to be proved which may be possessed by the parties respectively. Illustrations. (a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it. (6) A. a shipowner, sues B, an underwriter, on a policy of insurance on a ship. B alleges that A knew of and concealed from B material facts. B must give enough evidence to throw upon A the burden of disproving his knowledge; but slight evidence will suffice for this purpose.!? (c) In an action for malicious prosecution the plaintiff must prove ( 1 ) his innocence ; ( 2 ) want of reasonable and probable cause for the prosecution; (3) malice or indirect motive; and he must prove all that is necessary to establish each proposition sufficiently to throw the bur- den of disproving that proposition on the other side.18 16 For instances of such provisions, see Taylor, s. 372, n. 2. 17 Elkin v. Janson, 1845, 13 M. & W. 655. See, especially, the judgment of Aldersen, B., 663-6. 18 Abrath v. North Eastern Railway, 1883, 11 Q. B. D. 440. 31 482 A DIGEST OF [Part III. (d) In actions for penalties under the old game laws, though the plaintiff had to aver that the defendant was not duly qualified, and was obliged to give general evidence that he was not, the burden of proving any definite qualification was on the defendant. 19 AMERICAN NOTE. (As to the shifting of the burden of proof, see note to Articles 93 and 95.) General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 78, 79 et seq.; 5 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 21; Phoenix Ins. Co. v. Picket, 119 Ind. 155; 2Etna Life Ins. Co. v. Ward, 140 U. S. 76; State v. Hathaway, 115 Mo. 36; Robinson v. Robinson, 51 111. App. 317; State v. Ahem, 54 Minn. 195; State v. Emery, 98 N. C. 668; State v. Higgins, 13 R. I. 330; Mulcahy v. Fenwick, 161 Mass. 164; Barton v. Kirk, 157 Mass. 303; Parker v. Floyd, 12 Cush. (Mass.) 230; Lothrop v. Otis, 7 Al'len (Mass.), 435. First paragraph of text. Stiles v. Haner, 21 Conn. 512; Fox v. Glastenbury, 29 Conn. 209 ; Ryan v. Bristol, 63 Conn. 31, 37 ; Thomp- son v. Beacon Falls Rubber Co., 56 Conn. 499. In an action to recover an overpayment upon a contract of sale, the burden of proof is upon the plaintiff. Doyle v. Unglish, 143 N. Y. 556, 62 N. Y. St. R. 801, affirming 50 N. Y. St. R. 244. In an action to foreclose a mechanic's lien, the burden of proof is upon the plaintiff to show a substantial performance or waiver. Cahill v. Heuser, 2 App. Div. 292, 73 N. Y. St. R. 450. Where a general denial is interposed by the answer to the whole complaint, the plaintiff is bound to establish every material fact therein alleged. Farmers' Loan & Trust Co. v. Siefke, 144 N. Y. 354,. 63 N. Y. St. R. 662. The burden is upon those who allege unsoundness of mind in at- tacking a deed to prove that fact. Baldwin v. Golde, 88 Hun, 115 r 68 N. Y. St. R. 273. 19 1 Ph. Ev. 556, and cases there quoted : but now see 42 & 43 Vict, c. 49, s. 39. The illustration is founded more particularly on R. v. Jarvis, in a note to R. v. Stone, 1757, 1 Ea. 639. where Lord Mans- field's language appears to imply what is stated above. Chap. XIII.] THE LAW OF EVIDENCE. 48o Where exceptions are filed to the reports of executors and adminis- trators they have the burden of proof. Taylor v. Burk, 91 Ind. 252, 255. On appeal from proceedings to establish a highway or drain the remonstrant has the burden of proof. Peed v. Brenneman, 89 Ind. 252, 254 ; Conwell v. Tate, 107 Ind. 171, 172. The burden of proving insanity is on the party who alleges it. Fay v. Burditt, 81 Ind. 433, 443; Olvey v. Jackson, 106 Ind. 280, 290; Hull v. Louth, 109 Ind. 315, 323. New Jersey. Mental capacity. — Presumption is that testator had capacity to make a will. Mct'oon v. Allen, 45 N. J. Eq. 708; Lee's Case, 40 N. J. Eq. 193; Smith v. Smith, 48 N. J. Eq. 566; Swayze v. Swayze, 37 N. J. Eq. 180. Presumption is in favor of testamentary capacity. Burden on contestants to show insanity or drunkenness. Elkinton v. Brick, 44 N. J. Eq. 154; Dumont v. Dumont, 46 N. J. Eq. 223; Sloan v. Mans- field, 3 N. J. Eq. 563; Trumbull v. Gibbons, 2 Zab. 117; Andress v. Weller, 3 N. J. Eq. 604. Presumption is that a man is conscious and sane, and burden is on one alleging the contrary. State v. Hill, 65 N. J. L. 627 ; Turner v. Cheesman, 15 N. J. Eq. 243; Matter of Collins, IS N. J. Eq. 253. Defense of insanity regarded with jealousy and must be estab- lished by a preponderance of the evidence. Graves v. State, 45 N. J. L. 347. See State v. Spencer, 1 Zab. 197. Presumption is against total incapacity to contract because of intoxication. Burroughs v. Richman, 13 N". J. L. 233. Health. — Presumption is that every citizen enjoys normal con- dition of mind and body. Board of Health v. Lederer, 52 N. J. Eq. 675. Undue influence. — Waddivgton v. Buzby, 43 N. J. Eq. 154; reversed, 45 N. J. Eq. 173. Contributory negligence. — New Jersey Exp. Co. v. Nichols, 33 N. J. L. 434. Contributory negligence must be averred and proved by defendant. Durant v. Palmer, 29 N. J. L. 544. Authority — Fraud. •— Hagerman v Buchanan, 45 N. J. Eq. 292; Zinn v. Brinkerhoff, 48 N. J. Eq. 513. 484 A DIGEST OF [Pabt III. When a presumption of fraud arises. Phillips V. Pullen, 45 N. J. Eq. 830. Opportunities of knowledge. — Greeley v. Passaic, 42 N. J. L. 87. Burden on the defendant. — Burden of proving that one is within an exception to a general law forbidding the selling of liquors with- out a license is on the defendant. Plain fie Id V. ~\Yatson, 57 N. J. L. 525. Usury as a defense, burden on defendant. Berdan v. Trustees, 47 N. J. Eq. 8, 48 N. J. Eq. 309. Burden of proving a libelous publication privileged is on the de- fendant. King v. Patterson, 49 X. J. L. 417; Fahr v. Hayes, 50 N. J. L. 275. Instances. — The reasonableness of an ordinance is presumed. Trenton H. R. Co. v. Trenton, 53 N. J. L. 132. Presumption is that a woman is unmarried. Gaunt v. State, 50 N. J. L. 490. One alleging a deed absolute on its face to be a mortgage must prove it. Winters v. Earl, 52 N. J. Eq. 52, 588. When an officer acts without objection it will be presumed that he is the one appointed. State, Kingsland v. Union, 37 N. J. L. 268. Good repute for chastity must be proved affirmatively by the State in a prosecution for seduction. It is not presumed. Zabriskie v. State, 43 N. J. L. 646. Maryland. Instances. — There is no presumption that a dead man left no heirs; it must be proved. Sprigg v. Moale, 28 Md. 497; Hammond's Lessee v. Inloes, 4 Md. 138; Shriver v. State, 65 Md. 278. Mental capacity of a testator is presumed. Brown v. Ward, 53 Md. 376; Taylor v. Creswell, 45 Md. 422; Higgins v. Carlton, 28 Md. 111. There is no presumption that the law of another State is the same as the law of this when the common law has been changed by Btatute. Dickey v. Bank. S9 Md. 280; State v. Railroad Co., 45 Md. 41. Burden on the defendant. — In an action to vacate a conveyance as being in fraud of creditors, if the defendant alleges that the grantor had other property sufficient to pay creditors, he must sus- tain the burden of proving such allegation. Dawson v. Waltemeyer, 511 Md. 328. Chap. XIII.] THE LAW OF EVIDENCE. 485 The burden of proving that the insured committed suicide is on the defendant company. Royal Arcanum v. Biasheurs, 89 Aid. 024. The burden is on an insurance company to show that representa- tions of the insured were false and material to the risk. Maryland Casualty Co. v. Gehrmann, 90 Md. 034. In an action for false arrest, the burden of proof is on the de- fendant to show reasonable ground to suspect that the plaintiff was guilty. Edger v. Burke, 90 Md. 715. Negligence. — The burden is on the party alleging it. Railroad Co. v. Stebbing, 62 Md. 504; Commissioners of Harford v. Wise, 75 Md. 38; Railroad Co. v. State, 73 Md. 74; Benedick v. Potts, 88 Md. 52. In some cases, mere proof of the occurrence of an accident raises the presumption of negligence. Res ipsa loquitur. Howser v. Rail- road Co., 80 Md. 146; Benedick v. Potts, 88 Md. 52; Railroad Co. V. Kaskell, 78 Md. 517; Drug Co. v. Colladay, 88 Md. 78. Contributory negligence. — In a damage suit, the burden of prov- ing contributory negligence is on the defendant. State v. Railroad Co., 58 Md. 482; Freeh v. Railroad Co., 39 Md. 574. Pennsylvania. Particular facts. — Burden is on the one asserting: That a deed is antedated. Geiss v. Odenheimer, 4 Yeates, 278. That one having legal title holds in trust. Moore v. Small, 19 Pa. 461 ; Todd v. Campbell, 32 Pa. 250. That there is a trust and that the bar of the statute has been removed, as against an absolute deed thirty years old. Lingenfelter v. Rickey, 62 Pa. 123. That a boundary is other than the monuments show. Daioson v. Mills, 32 Pa. 302. That a garnishee holds assets. Caldicell v. Coates, 78 Pa. 312. That a condition precedent to liability on an instrument has occurred. Patterson v. Bank, 4 W. & S. 42. That a contracting party was in- competent. McClure v. Mansell, 4 Brewst. 119. Burden of proving marriage is upon woman claiming to be widow of decedent. Davis' Estate, 204 Pa. 602. Burden is on the insurance company to show that insured com- mitted suicide. Fisher v. Life Assn., 188 Pa. 1. In action on a lost note given for a loan, the burden of proving the loan, the note, and its loss is on the plaintiff. Bollinger v. Cowan, 193 Pa. 319. 486 A DIGEST OF [Pabt III. Illustration (c).— McClafferty v. Philp, 151 Pa. 86. Mental capacity. — Testamentary capacity and absence of undue influence are presumed. Messner v. Elliott, 184 Pa. 41; Grubbs v. McDonald, 91 Pa. 236; McClure v. Mansell, 4 Brewst. 119. Negligence. — Sopherstein v. Bertels, 178 Pa. 401 ; Madura V. Elec- tric By. Co., 192 Pa. 542; Earle v. Arbogast, 180 Pa. 409. Evidence that a passenger was injured through a defect in the track raises a presumption of negligence. McCafferiy v. Railroad Co., 193 Pa. 339. No presumption of negligence arises from the mere fact that one is found by a railroad track in a dying condition. Welsh v. Rail- road Co., 181 Pa. 461. Burden of proving negligence where an infant was injured is on the plaintiff; where it is not sustained there should be an instruc- tion for the defendant. Kline v. Traction Co., 1S1 Pa. 276; Moss v. Traction Co., 180 Pa. 389. A presumption of negligence is warranted by proof that squabs were in good condition when put in a cold storage warehouse and were mouldy and rotten when removed therefrom. Lcidy v. Ware- house Co., 180 Pa. 323. Contributory negligence. — It is presumed that the deceased " stopped, looked, and listened." Connerton v. Canal Co., 169 Pa. 339. Burden on the defendant. — Burden of proving a set-off for breach of warranty is on defendant. Ore Roaster Co. v. Rogers, 191 Pa. 229. In action to recover the purchase price of a mill, the burden of proving that the mill was not as guaranteed is on the defendant. Sprout, Waldron & Co. v. Eagal, 193 Pa. 389. Burden of proving payment of a debt is on one alleging it. Burk's Estate, 205 Pa. 332 ; Building Assn. v. Wall, 7 Phila. 240. Burden of proving insanity as a defense is on the accused and is never shifted. It must be established by a fair preponderance of the evidence. Com. v. Ileidler, 191 Pa. 375; Com. v. Bezek, 168 Pa. 603; Com. v. Gerade, 145 Pa. 289; Com. v. Woodley, 106 Pa. 463; Ortwein v. Com.. 76 Pa. 414; Com. v. Kilpatrick, 204 Pa. 218. In an action for selling goods without a license, the burden is on the defendant to show that he had one. Com. v. Brownbridge, 1 Brewst. 399; 8. C, 6 Phila. 318: Com. v. Dilbo, 29 Leg. Int. 150. Chap. XIII.] THE LAW OF EVIDENCE. 487 Akticle 97. burden of proving fact to be proved to make evidence admissible. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. Illustrations. (a) A wishes to prove a dying declaration by B. A must prove B's death, and the fact that he had given up all hope of life when he made the statement. ( b ) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost. AMERICAN NOTE. General. Authorities. — Grimes v. miliary, 150 111. 141; Hansen v. Amer. Ins. Co., 57 la. 741; State v. Thibeau, 30 Vt. 100; State v. Swift, 57 Conn. 505, 506; Com. v. Brown, 14 Gray (Mass.), 419; Com. v. Waterman, 122 Mass. 43; Same v. Ratcliffe, 130 Mass. 36. Evidence already in may be rendered competent by subsequent evi- dence. Burns v. Harris, 66 Ind. 536; Roivell v. Klein, 44 Ind. 290. Evidence may be admitted conditionally upon an agreement to bring forth other evidence. Railway Co. v. Conway, 57 Ind. 52. New Jersey. Burden of proving that an instrument is lost. — Johnson v. Am- wine, 42 N. J. L. 451. Lost contract — burden on one claiming under it. Swaine v. Maryott, 28 N. J. Eq. 589. Burden of proving that an instrument is lost is on the one offer- ing secondary evidence. Wyckoff v. Wyckoff, 16 N. J. Eq. 401 Clark v. Hombeck, 17 N. J. Eq. 430; Wills v. McDole, 2 South. 502 Sterling v. Potts, 2 South. 773: Smith v. Axtell, 1 N. J. Eq. 494 Svssex Ins. Co. v. Woodruff, 26 N. J. L. 541. A subsequent admission that an instrument is lost is as good as preliminary proof. Culver v. Culver, 31 N. J. Eq. 448. 488 A DIGEST OF [Part III. Confessions. — Before the State may introduce a confession, it must prove affirmatively that the confession was voluntary. State v. Young, 67 N. J. L. 223; Roesel v. State, 62 N. J. L. 216. Maryland. Whether the loss of a document is established sufficiently to let in secondary evidence is a question for the court. Banking Co. v. Oittings, 45 Md. 181. Pennsylvania. Whether the loss of a document has been proved so as to let in secondary evidence is a question for the court. Flinn v. McGonigle, 9 W. & S. 75; Graff v. Railroad Co., 31 Pa. 489; Gorgas v. Hertz, 150 Pa. 538. Burden of proving that an instrument is lost. Emig v. Diehl, 76 Pa. 359; Burr v. Ease, 168 Pa. 81; Insurance Co. v. Mardorf, 152 Pa. 22. Article 97a. burden of proof when parties stand in a fiduciary relation. When persons stand in a relation to each other of such a nature that the one reposes confidence in the other, or is placed by circumstances under his authority, control or influence, when the question is as to the validity of any transaction between them from which the person in whom confidence is reposed or in whom authority or influence is vested derives advantage, the burden of proving that the confidence, authority or influence was not abused, and that the transaction was in good faith and valid, is on the person in whom such confidence or authority or influence is vested, and the nature and amount of the evidence required for this purpose depends upon the nature of the confidence or au- thority, and on the character of the transaction. 20 20 See Story's ' Equity,' para. 307 and following. Also Taylor, s. 151 and following. The illustrations of the principle are innumerable, and: very various. Chap. XIII.] THE LAW OF EVIDENCE. 489 AMERICAN NOTE. General. Authorities. — 27 Am. & Eng. Encyclopaedia of Law (1st ed.), p. 452 et seq.; Pomeroy's Equity Jurisprudence, sees. 943-9G3 Darlington's Estate, 147 Pa. St. 624; Roby v. Colehour, 135 I1L 300 Porter v. Bergen, 54 N. J. Eq. 405; Lauere v. Reynolds, 35 Minn 476; McConkey v. Cockey, 69 Md. 286; Bogie v. Nolan, 96 Md. 86 Gates v. Cornett, 72 Mich. 420; Stepp v. Frampton, 179 Pa. St. 284 Burnham v. Heselton, 82 Me. 495; Whipple v. Barton, 63 N. H. 613 Sr. Leger's Appeal, 34 Conn. 450; Livingston's Appeal, 63 Conn. 78 Richmond's Appeal, 59 Conn. 247. Where a person stands in a relation of special confidence towards another and has with him some transaction from which he derives benefit, such transaction will not be sustained in equity unless it was fair in itself and its nature and effect fully understood. Nichols v. McCarthy, 53 Conn. 318. And the burden of proof is on the person claiming the benefit of the transaction to show these facts. Nichols v. McCarthy, 53 Conn. 323. One partner cannot take any unlawful advantage of his copartners, but the burden is not upon him to show affirmatively that his pur- chase of the interest of his copartner was fair. Nirdlinger v. Bern- heimer, 90 Hun, 290; affirmed, on opinion below, in 153 N. Y. 652. See 133 N. Y. 45, reversing 33 N. Y. St. R. 1019. Attorney and client.— Pet rie v. Williams, 68 Hun, 589, 52 N. Y. St. R. 587. See same case, 88 Hun, 292, 153 N. Y. 671; Matter of Cohen, 84 Hun, 586, 66 N. Y. St. R. 325 ; Findley v. Leary, 87 Hun, 8, 67 N. Y. St. R. 488; Marden v. Dorthy, 12 App. Div. 176, 42 N. Y. Supp. 834. See same case, 12 App. Div. 188, 42 N. Y. Supp. 827. Fiduciary relations. — In case of confidential relationship, the bur- den is upon the one claiming benefit from the transaction. Smith v. Cuddy, 96 Mich. 562, 56 N. W. 89; Brennan v. Zehner, 97 Mich. 98; Gates v. Cornett, 72 Mich. 420. Where a director makes a contract with a corporation, the burden is upon him to snow good faith. Miner v. Belle Isle Ice Co., 93 Mich. 97. 490 A DIGEST OF [Part III. Evidence that parties had lived together in adulterous intercourse is pertinent as a fact tending to prove the existence of undue influ- ence in procuring a deed. Wallace v. Harris, 32 Mich. 380. New Jersey. General rule. — Farmer v. Farmer, 39 N. J. Eq. 211; Dunn v. Dunn, 42 N. J. Eq. 431; Traphagen v. Yoorhees, 44 N. J. Eq. 21; Mott v. Mott, 49 N. J. Eq. 192; Porter v. Bergen, 54 N. J. Eq. 405. Attorney and client. — The burden of proving that a transaction between an attorney and a client was a fair one is on the attorney. Gondii v. Blackwell, 22 N. J. Eq. 481; Porter v. Bergen, 54 N. J. Eq. 405; Broivn v. Bulkley, 13 N. J. Eq. 451. Spiritual adviser. — The relationship of priest and parishioner raises no presumption of undue influence where the spiritual adviser is made residuary legatee. Distinguishing gifts inter vivos. Sparks' Case, 63 N. J. Eq. 242. Conveyance by parishioner to priest, burden of proof on the latter. Corrigan v. Pironi, 4S N. J. Eq. 607. Guardians and trustees. — For a guardian to obtain a discharge, he must satisfy the court as to any disputed items. Pyatt v. Pyatt, 44 N. J. Eq. 491; reversed, 46 N. J. Eq. 285. Burden of proof on an accounting trustee. McCnlloch v. Tomp- kins, 62 N. J. Eq. 262. The burden of proving that an item in a guardian's account is false is on the ward only when the guardian has complied with the law. Burnham v. Dulling, 16 N. J. Eq. 144. Principal and agent. — The rule applies where an agent takes title to property of which he is in charge, though the agent be the child of the principal. Le Gendre v. Byrnes, 44 N. J. Eq. 372. Husband and wife. — The rule applies when a husband procures his wife to execute a deed of trust by which he secures an advan- tage. Hall v. Otterson, 52 N. J. Eq. 522, 53 N. J. Eq. 695. When property is transferred by a wife to a husband for the bat- ter's benefit, the burden of proving undue influence is on the wife. Ourtis v. Grossley, 59 N. J. Eq. 358. Confidential relation. — Burden of proof may shift from one im- peaching his deed to the one upholding it, in case the former proves €hap. XIII.] THE LAW OF EVIDENCE. 4D1 that he is illiterate and that the deed was read to him by the grantee only. Suffeni v. Butler, 19 N. J. Eq. 202. Confidential companion and business adviser was sole beneficiary under a will ; burden of proving undue influence was on contestants. Wheeler v. Whipple, 44 N. J. Eq. 141, 45 N. J. Eq. 3G7. Burden of proof is upon a beneficiary who had the testator under his control. Carroll v. Hause, 48 N. J. Eq. 2G9; Boisaubin v. Bois- aubin, 51 N. J. Eq. 252. Maryland. The doctrine applied to transactions between persons occupying confidential relations does not apply to gifts by will. Tyson v. Tyson, 37 Md. 567; Griffith v. Diffenderffer, 50 Md. 460. Proof that a conveyance for an inadequate consideration was made by an illiterate old man in his last illness to his business agent and adviser raises a presumption of undue influence. Zim- merman v. Biiner, 79 Md. 115. Guardian and ward. — McConkcy v. Cockey, 69 Md. 286. Parent and child. — The burden of proving good faith is not upon a child who is the donee in a voluntary conveyance from his parent. Bauer v. Bauer, 82 Md. 241. Principal and agent. — As to ti'ansactions between principal and agent, the burden of proving good faith is on the agent. Brown v. Trust Co., 87 Md. 377. But this rule does not apply when the transaction in question was not related to the subject of the agency. Id. Pennsylvania. Confidential relation. — Where a testator's son, who is largely pre- ferred, was the confidential agent of his father, the burden of proof is on him to show no undue influence. Miller v. Miller, 187 Pa. 572. Where circumstances show that the parties did not deal on equal terms, but that one had overmastering influence while the other was old, infirm, and dependent, the burden of proving the transac- tion to be fair is on the former. Stepp v. Frampton, 179 Pa. 284. A beneficiary who has procured a will to be written for his benefit by one whose faculties are impaired must sustain the burden of proof. Caven v. Agnew, 186 Pa. 314. The donee of a large voluntary gift must show that the donor knew and understood what he was doing. Neal v. Black, 177 Pa. S3; Clark v. Clark. 174 Pa. 309. 492 A DIGEST OF [Part III. Parent and child. — Burden of proof is not on a child to show that a voluntary deed from his parent was fair and conscionable. Car- ney v. Carney, 196 Pa. 34; Clark v. Clark, 174 Pa. 309. " Business dealings between parents and children and other near relatives are not per se fraudulent; they must be treated just as are the transactions between ordinary debtors and creditors, and where the bona fides of their transactions is attacked, the fraud must be clearly proved." Reehling v. Byers, 94 Pa. 316; Coleman's Estate, 193 Pa. 605 (reviewing many cases). Husband and wife. — No presumption that a deed from husband to wife without any valuable consideration was obtained through un- due influence. Ford v. Ford, 193 Pa. 530. Chap. XIV.] THE LAW OF EVIDENCE. 493 CHAPTER XIV. 02V PRESUMPTIONS AND ESTOPPELS. * Article 98. presumption of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within such a time after the dissolution thereof and before the celebration of another valid marriage, that his mother's husband could have been his father, is conclusive proof that he is the legitimate child of his mother's husband, unless it can be shown — either that his mother and her husband had no access to each other at any time when he could have been begotten, regard being had both to the date of the birth and to the physical condition of the husband, or that the circumstances of their access (if any) were such as to render it highly improbable that sexual inter- course took place between them when it occurred. ^Neither the mother nor the husband is a competent wit- ness as to the fact of their having or not having had sexual intercourse with each other (unless the proceedings in the course of which the question arises are proceedings insti- tuted in consequence of adultery 1 ), nor are any declarations by them upon that subject deemed to be relevant facts when the legitimacy of the woman's child is in question, * See Note XXXV. i 32 & 33 Vict. c. 68. s. 3. 494 A DIGEST OF [Part III. whether the mother or her husband can be called as a wit- ness or not, provided that in applications for affiliation or- ders when proof has been given of the non-access of the husband at any time when his wife's child could have been begotten, the wife may give evidence as to the person by whom it was begotten. 2 Letters written by the mother may, as part of the res gestce, be admissible evidence to* show illegitimacy, though the mother could not be called as a witness to prove the statements contained in such letters. 3 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 28, 344;. vol. 2, sees. 150-153; 13 Am. & Eng. Encyclopaedia of Law (1st ed.), p. 225; 3 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 873; Grant v. Mitchell, 83 Me. 23; Pittsford v. Chittenden, 58 Vt. 69; Sullivan v. Kelly, 3 Allen (Mass.), 148, 150; Phillips v. Allen, 2 Allen (Mass.), 453; Abington v. Dunbury, 105 Mass. 287; Bowers v. Wood, 143 Mass. 182; Patterson v. Gaines, 6 How. (U. S.) 550; State v. Lavin t 80 la. 555; Bullock v. Knox, 96 Ala. 195; Watts v. Owens, 62 Wis. 2R. v. Luffe, 1807, 8 Ea. 190, at p. 207; Cope v. Cope, 1833, 1 Mo. & Ro. 269 and at p. 273; Legge v. Edmonds, 1856, 25 L. J. Eq. 125, see p. 135; R. v. Mansfield, 1841, 1 Q. B. 444; Morris v. Davies f 1825, 3 C. & P. 215. See, as an illustration of these principles, Eawes v. Draeger, 1883, 23 Ch. Div. 173. I am not aware of any de- cision as to the paternity of a child born say six months after the death of one husband, and three months after the mother's marriage to another husband. Amongst common soldiers in India such a question might easily arise. The rule in European regiments is that a widow not remarried within the year (it used to be six months) must leave the- ro (f) A railway company negligently issues two delivery orders for the same wheat to A, who fraudulently raises money from B as upon two consignments of different lots of wheat. The Railway is liable to B for the amount which A fraudulently obtained by the company's negligence.17 (g) A carelessly leaves his door unlocked, whereby his goods are stolen. He is not estopped from denying the title of an innocent purchaser from the thief.18 AMERICAN NOTE. General. Authorities. — Bigelow on Estoppel, sec. 453 et seq.; 11 Am. & Eng. Encyclopaedia of Law ( 2d ed. ) , p. 420 et seq. Estoppel. — First paragraph of text. Dickerson v. Colgrove, 100 U. S. 578; Mutual Life Ins. Co. v. Norris, 31 N. J. Eq. 583; Slocumb v. Railroad Co., 57 la. 675; Stevens v. Ludlum, 40 Minn. 168; Bates v. Swiger, 40 W. Va. 421; Putnam v. Tyler, 117 Pa. 570; Fletcher v. Pullen, 70 Md. 205; Backus v. Taylor, 84 Ind. 503; Drew v. Kim- ball, 43 N. H. 282, 80 Am. Dec. 163; Horn v. Cole, 51 N. H. 287; Forsyth v. Day, 46 Me. 176; Wetherell v. Mar. Ins. Co., 49 Me. 200; Allen v. Shaic, 61 N. H. 95; Canfield v. Gregory, 66 Conn. 9, 17; Chase's Appeal, 57 Conn. 236; Roe v. Jerome, 18 Conn. 153; Taylor is Knights v. Wiffen, 1870, L. R. 5 Q. B. 660. 16 Young v. Groate, 1827, 4 Bing. 253. 17 Coventry v. G. E. R., 1883, 11 Q. B. D. 776. 18 Per Blackburn, J., in Swan v. A r . B. Australasian Co., 1863, 2 H. & C. 181. See Baxendale v. Bennett. 1878. 3 Q. B. D. 525. The earlier cases on the subject are much discussed in Jorden v. Money, 1854, 5 H. L. Ca. 209-16, 249-257. Chap. XIV.] THE LAW OF EVIDENCE. 513 v. Ely, 25 Conn. 258; Mitchell v. Leavitt, 30 Conn. 590; Carroll v. M. R. It. Co., Ill Mass. 1; Zuchtman v. Roberts, 109 Mass. 53, 54, 12 Am. Eep. 663; Jackson v. Allen, 120 Mass. 64; Fall River Dank v. Duffinton, 97 Mass. 500. Fraud. — Last paragraph of text. Ruddell v. Fhalor, 72 Ind. 533; Ross v. Doland, 29 O. St. 473; Shirts v. Over John, 60 Mo. 305. Com- pare Leather Mfrs. Dank v. Holley, 117 U. S. 96; O'Mulcahy v. HoZ- Jey, 21 Minn. 31 ; Putnam v. Sullivan, 4 Mass. 45, 53, 3 Am. Dec. 206. Last paragraph of text. — Ross v. Doland, 29 Ohio St. 473. New Jersey. Estoppel. — First paragraph of text. Mutual Life Ins. Co. v. Nor- ris, 31 N. J. Eq. 583. One erected a house on land of another who stood by and was silent. No estoppel if the silence was due to mistake. McKelway v. Armour, 10 N. J. Eq. 115. Instances. — Dank v. Fulmer, 31 N. J. L. 52; Den. V. Daldwin, 1 Zab. 395; Dewees v. Insurance Co., 35 N. J. L. 366; Erie R. Co. v. D., L. & W. R. Co., 21 N. J. Eq. 283; Atty.-Gen. v. Railroad Co., 24 N. J. Eq. 50. Estoppel in pais defined. — Church v. Iron Works, 45 N. J. L. 133. Maryland. Authorities in general. — Early v. Dank, 51 Md. 562; Homer v. Grosholz, 38 Md. 520; Bramble v. State, 41 Md. 435; McClellan t. Kennedy, 8 Md. 230; Hambleton v. Railroad Co., 44 Md. 551; Browne v. Church, 37 Md. 108; Andrews v. CZarfc, 72 Md. 396; Fletcher v. Pullen, 70 Md. 205. Facts constituting an estoppel in pais are admissible without being specially pleaded. Babylon v. Duttera, 89 Md. 444. Estoppel, what is. Alexander v. Walker, 8 Gill, 239. When the law raises a conclusive presumption as to one's inten- tion from the acts themselves, no evidence as to such intention is admissible. Lineiceaver v. Slagle, 64 Md. 465. Estoppels must be mutual. Groshon v. Thomas, 20 Md. 234. Illustration (e). — Rule contra. Burrows v. Klunk, 70 Md. 451. 33 514 A DIGEST OF [PabtIII. Pennsylvania. Estoppel by conduct. — Illustrations. Sargent v. Johns, 206 Pa. 386; Putnam v. Tyler, 117 Pa. 570. Receipt in full as an estoppel. Ebert v. Johns, 206 Pa. 395. A receipt may operate as an estoppel as against third parties acting in reliance upon such receipt to their injury. Atkins v. Payne, 190 Pa. 5. No estoppel from failure to proclaim a forgery immediately on discovery. Zell's Appeal, 103 Pa. 344. Illustration (e). — Question of negligence left to the jury. Leas v. Walls, 101 Pa. 57. Article 103. estoppel of tenant and licensee. ~No tenant and no person claiming through any tenant of any land or hereditament of which he has been let into possession, or for which he has paid rent, is, till he has given up possession, permitted to deny that the landlord had, at the time when the tenant was let into possession or paid the rent, a title to such land or hereditament ; 19 and no person who came upon any land by the licence of the person in possession thereof, is, whilst he remains on it, permitted to deny that such person had a title to such pos- session at the time when such licence was given. 20 AMERICAN NOTE. General. Authorities. — 18 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 411 et seq.; vol. 11, p. 440 et seq.; 1 Washburn on Real Property (5th ed.), pp. 588-601. 19 Doe v. Barton, 1840, 11 A. & E. 307; Doe v. Smyth, 1815, 4 M. & S. 347; Doe v. Pegg, 1785, 1 T. R. 760 (note). 20 Doe v. Baytup, 1835, 3 A. & E. 188. Chap. XIV.] THE LAW OF EVIDENCE. 515 Tenant.— Scott v. Rutherford, 92 U. S. 107; Sexton v. Carley, 147 111. 269. But see Corrigan v. Chicago, 144 111. 537; Derrick v. Luddy, 64 Vt. 462 ; Camp v. Camp, 5 Conn. 300 ; Magill v. Hinsdale, 6 Conn. 469; Holmes v. Kennedy, 1 Root (Conn.), 77; Streeter v. Ilsley, 147 Mass. 141; Co66 v. Arnold, 8 Mete. (Mass.) 398; Bailey v. Kilburn, 10 Mete. (Mass.) 176; OaA;es v. Munroe, 8 Cush. (Mass.) 282; MiZ- Jer v. Lana, 99 Mass. 13; Homes v. Shaw, 100 Mass. 187; Coburn v. Palmer, 8 Cush. (Mass.) 124; B/afce v. Sanderson, 1 Gray (Mass.), 332; Patten v. Deshon, 1 Gray (Mass.), 325; Dunshee v. Grundy, 15 Gray (Mass.), 314; Granger v. Parker, 137 Mass. 228. A tenant may dispute his lessor's title, if he has yielded the pos- session in good faith, though without process of law, to one who had actu My entered under a paramount title, coupled with a present right of entry. Camp v. Scott, 47 Conn. 369. A lessee, who holds over after the end of the term, is estopped from setting up against the lessor that the title is in a stranger. Holmes v. Kennedy, 1 Root, 77. Licensee. — Hamilton, etc., R. Co. v. R. R. Co., 29 O. St. 341 ; Hoen v. Simmons, 1 Cal. 719, 52 Am. Dec. 290; Glynn v. George, 20 N. H. 114. The estoppel may be claimed by any person deriving title from the landlord. People v. Angel, 61 How. Fr. 159; Goodnow v. Pope, 31 Misc. Rep. 475. New Jersey. Estoppel of tenant to deny landlord's title. Horner v. Leeds, 25 N. J. L. 106. Maryland. A tenant is estopped from denying his landlord's title. Goodsell v. Lawson, 42 Md. 348; Cook v. Cresswell, 44 Md. 581; Isaac v. Clarke, 2 Gill, 1. If plaintiff claims title under the same person as the defendant does, he need not show that person's title as the defendant i^ estopped to dispute it. Ehcood v. Lannon, 27 Md. 200. But a tenant may show that the landlord's estate has been sold for taxes. Keys v. Forrest, 90 Md. 132. A tenant may show that his landlord's title has expired since the lease. Presstman v. Silljacks, 52 Md. 647. 516 A DIGEST OF [Part III. Pennsylvania. Authority: Eunkle v. Gas Co., 165 Pa. 133. A tenant may show that one of the persons who signed the lease as landlord is not actually the landlord and did not sign as such. Swint v. Oil Co., 184 Pa. 202. Article 104. estoppel, of acceptor of bile of exchange. ~No acceptor of a bill of exchange is permitted to deny the signature of the drawer or his capacity to draw, or if the bill is payable to the order of the drawer, his capacity to endorse the bill, though he may deny the fact of the en- dorsement; 21 nor if the bill be drawn by procuration, the authority of the agent, by whom it purports to be drawn, to draw in the name of the principal, 22 though he may deny his authority to endorse it. 23 If the bill is accepted in blank, the acceptor may not deny the fact that the drawer endorsed it. 24 AMERICAN NOTE. Authorities. — 2 Greenleaf on Evidence (2d ed.), sees. 164, 165; 4 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 65 et seq.; Hoffman v. Bank of Milwaukee, 12 Wall. 181; U. 8. Bank v. Bank of Georgia, 10 Wheat. 333, 353; Rational Bank v. Bangs, 106 Mass. 441; Marine Nat. Bank V. Nat. City Bank, 59 N. Y. 67; Nat. Park Jank v. Ninth Nat. Bank, 4t> X. Y. 77. 70 Am. Rep. 310; Crawford's Negotiable In- struments Law, sec. 112, p. 52. 21 Garland v. Jacomb, 1873. L. P. 8 Ex. 216. 22 Sanderson v. Collman, 1842. 4 M. & G. 209. 23 Robinson v. Yarrow, 1817, 7 Tau. 455. 24 L. & S. W. Bank v. Went worth, 1880, 5 Ex. D. 96. Chap. XIV.] TEE LAW OF EVIDENCE. 517 New Jersey. The acceptor cannot deny that due diligence was used in present- ing it. Middlesex v. Thomas, 20 N. J. Eq. 39. Maryland. The acceptor conclusively admits the signature of the drawer, Dut not the indorsement of the payee, even though the bill be to the drawer's own order. Williams v. Drexel, 14 Md. 566. The acceptor is estopped to deny, as against the payee, that he has funds of the drawer in his hands. Laflin v. Sinsheimer, 4S Md. 411. Pennsylvania. The indorser of a negotiable instrument cannot be a witness to invalidate it. John's Admr. v. Pardee, 109 Pa. 545. Article 105. estoppel of bailee, agent, and licensee. No bailee, agent, or licensee is permitted to deny that the bailor, principal, or licensor, by whom any goods were entrusted to any of them respectively was entitled to those goods at the time when they were so entrusted. Provided that any such bailee, agent, or licensee may show that he was compelled to deliver up any such goods to some person who had a right to them as against his bailor, principal, or licensor, or that his bailor, principal, or licensor, wrongfully and without notice to the bailee, agent, or licensee, obtained the goods from a third person who has claimed them from such bailee, agent, or li- 25 Dixon v. Hammond, 1819, 2 B. & A. 310; Crossley v. Dixon, 1863, 10 H. L. C. 293; Gosling v. Birnie, 1831. 7 Bing. 339; Hardman v. Wilcock, 1832 (?), 9 Bing. 382 (n.) ; Biddle v. Bond y 1865, 34 L. J. Q. B. 137; Wilson v. Anderton, 1830, 1 B. & Ad. 450. As to carriers, see Sheridan v. New Quay, 1858, 4 C. B. (N. S.) 618. 518 A DIGEST OF [PabtIII. Every bill of lading in the hands of a consignee or en- dorsee for valuable consideration, representing goods to have been shipped on board a vessel, is conclusive proof of that shipment as against the master or other person sign- ing the same, notwithstanding that some goods or some part thereof may not have been so shipped, unless such holder of the bill of lading had actual notice at the time of receiving the same that the goods had not been in fact laden on board, provided that the master or other person so signing may exonerate himself in respect of such misrepre- sentation by showing that it was caused without any de- fault on his part, and wholly by the fraud of the shipper or of the holder or some person under whom the holder holds. 26 AMERICAN NOTE. Authorities. — 4 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 531 et seq.; vol. 3, p. 758 et seq.; vol. 1, p. 1091 et seq. Bailee, etc. — First paragraph of text. Bricker v. Stroud, 56 Mo. App. 183; The Idaho, 93 U. S. 575; King v. Richards, 6 Whart. 418; Pulliam v. Burlingame, 81 Mo. Ill, 51 Am. Rep. 229; Roberts v. Noyes, 76 Me. 590; Singer Mfg. Co. v. King, 14 R. I. 511; Burton v. Wilkinson, 18 Vt. 186, 46 Am. Dec. 145; Staples v. Fillmore, 43 Conn. 510; Osgood v. Nichols, 5 Gray (Mass.), 420; Bursley v. Ham- ilton, 15 Pick. (Mass.) 40, 25 Am. Dec. 423. Bill of lading. — Last paragraph of text. Relyea v. New Haven Rolling Mill Co., 75 Fed. Rep. 420 ; Brooke v. N. Y., etc., R. Co., 108 Pa. 529; Sioux City, etc., R. Co. v. First Nat. Bank, 10 Neb. 556; Sears v. Wingate, 3 Allen (Mass.), 103. But see Pollard v. Vinton, 105 U. S. 7; Bait. & O. R. Co. v. Wilkens, 44 Md. 11; Dean v. King, 22 O. St. 118; Nat. Bank of Commerce v. Chicago, etc., R. Co., 44 Minn. 224. 26 18 & 19 Vict. c. Ill, s. 3. Chap. XIV.] THE LAW OF EVIDENCE. 519 New Jersey. Bill of lading. — The receipt of a common carrier i3 not conclusive proof of quantity or condition of the goods in favor of either con- signor or consignee. Aip-es v. Railroad Co., 29 N. J. L. 397. Maryland. Bill of lading. — Last paragraph of text. See B. & 0. R. Co. v. Wil- kens, 44 Md. 11. Pennsylvania. Shipowner is estopped if the master acts within apparent author- ity. Brooke v. Railroad Co., 108 Pa. 529. 52Q A DIGEST OF [Pabt III. CHAPTER XV. OF THE COMPETENCY OF WITNESSES.* Article 106. who may testify. All persons are competent to testify in all cases except as hereinafter excepted. AMERICAN NOTE. General. Competency is presumed. Campbell v. Campbell, 130 111. 466, 473. The statute on evidence does not render incompetent any person before competent. M'Xay v. Riley, 135 111. 589. Credible witnesses to a will are competent witnesses. In re Noble's Estate, 22 111. App. 535; In re Will, etc., 124 111. 269. All witnesses are competent unless rendered incompetent by stat- ute, under section 504, Rev. Stat., 1894. Jordon v. State, 142 Ind. 422. A person of sufficient age is presumed to be a competent witness. Duncan v. Welty, 20 Ind. 44. Presumed competent. — A witness is presumed to be competent until the contrary is shown. Norris v. Hurd, Wright, 102. Article 107. t WHAT WITNESSES ARE INCOMPETENT. A witness is incompetent if in the opinion of the judge he is prevented by extreme youth, disease affecting his mind, or any other cause of the same kind, from recollect- ing the matter on which he is to testify, from nnderstand- * See Note XXXIX. f See Note XL. A witness under sentence of death was said to be incompetent in R. v. Webb, 1867, 11 Cox, 133, sed quaere. Chap. XV.] TUB LAW OF EVIDENCE. 521 ing the questions put to him, from giving rational answers to those questions, or from knowing that he ought to speak the truth. A witness unable to speak or hear is not incompetent, but may give his evidence by writing or by signs, or in any other manner in which he can make it intelligible ; but such writing must be written and such signs made in open Court. Evidence so given is deemed to be oral evidence. AMERICAN NOTE. General. Authorities. — 1 Wharton on Evidence, sees. 398-403, 406, 407; 1 Greenleaf on Evidence (15th ed. ), sees. 365-370. Youth, etc. — First paragraph of text. State v. Whit tier, 21 Me. 341, 347, 38 Am. Dec. 272; Day v. Day, 56 N. H. 316; Com. V. Hutchinson, 10 Mass. 225; Com. v. Robinson, 165 Mass. 426; State v. Levy, 23 Minn. 104; State v. Doyle, 107 Mo. 36; State v. Douglas, 53 Kan. 669; McGuff v. State, 88 Ala. 147. A child of five may be allowed to testify. Com. v. Robinson, 165 Mass. 426. See also Wheeler v. U. S., 159 U. S. 523; State v. Juneau, 88 Wis. 180; McGuire v. People, 44 Mich. 2S6 (child of six). Unsound mind. — Kendall v. May, 10 Allen (Mass.), 59; Com. t. Lynes, 142 Mass. 577; Lewis v. Eagle Ins. Co., 10 Gray (Mass.), 508. The question whether a person offered as a witness is insane goes to his competency, and is a preliminary question to be decided by the court. Holcomb v. Holcomb, 28 Conn. 179. Persons of unsound mind may testify if, in fact, their under- standing is sufficient to enable them to understand the oath and the questions. Pease v. Burroioes, 86 Me. 153, 176; Dist. of Columbia v. Annes, 107 U. S. 519; Tucker v. Shaw, 158 111. 326; Bowdle v. Railway Co., 103 Mich. 272; Cannaday v. Lynch, 27 Minn. 435; Worthington v. Mencer, 96 Ala. 310. Interest. — The common-law disqualification because of interest ia now removed, so far as the United States courts are concerned. U. S. Stat, at Large, vol. 20, p. 30 ; U. S. Rev. Stats., sec. 858. 522 A DIGEST OF [Part III. In the various States, the common-law disqualification because of interest is generally removed by statute, but the fact of interest may be shown (e. g., Conn. Gen. Stats., sec. 1098). Atheist. — At common law, one who does not believe in God is an incompetent witness. Free v. Buckingham, 59 N. H. 219; Arnd v. Amling, 53 Md. 192; Clinton v. State, 33 0. St. 27 ; Hunscom v. Huns- com, 15 Mass. 184. The opinions of one offered as a witness, as to the existence of a God and future accountability, must be derived from other wit- nesses, and he cannot himself be questioned upon them. Atwood v. Welton, 7 Conn. 73. They may be proved from his declarations out of court. Curtisa v. Strong, 4 Day (Conn.), 56; Boio v. Parsons, 1 Root (Conn.), 481. An atheist is now, by statute generally, a competent witness, but the fact may be shown (e. g., Conn. Gen. Stats., sec. 1098; Mass. Pub. Stats., chap. 169, sec. 17). See Eronek v. People, 134 111. 139; Peo- ple v. Cop.ey, 71 Cal. 548; Bush v. Com., 80 Ky. 244. Deaf and dumb witness. — Quinn v. Halbert, 57 Vt. 178; State v. De Wolf, 8 Conn. 93, 97. Conviction of crime. — Conviction of crime does not render a per- son incompetent as a witness, although it may be shown to affect credibility. Code Civ. Pro., sec. 832. Sims v. Sims, 75 N. Y. 466; People v. O'Xeil, 109 N. Y. 251. And this even though the crime is not an infamous one. People v. Burns, 33 Hun, 296. Accomplice. — An accomplice may testify against a prisoner. Love v. People, 160 111. 501. Detectives. — The testimony of a private detective is to be re- garded with suspicion. Blake v. Blake, 70 111. 618. Compare De- Long v. Giles, 11 Brad. 33. Bias. — It is competent to prove a witness's bias and sympathy. Elgin v. Eaton, 2 Brad. 90. No party to any civil action, suit, or proceeding, or person di- rectly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, (removing disqualification because of interest) when any adverse party sues or defends as the trustee or conservator of any idiot, habitual drunkard, lunatic, or distracted person, or as the executor, administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or €hap. XV.] THE LAW OF EVIDENCE. 523 devisee, unless when called as a witness by such adverse party so suing or defending, and also except in the following cases, namely : First. In any action, suit or proceeding, a party or interested person may testify to facts occurring after the death of such de- ceased person, or after the ward, heir, legatee or devisee shall have attained his or her majority. Second. When, in such action, suit or proceeding, any agent of any deceased person shall, in behalf of any person or persons suing or being sued, in either of the capacities above named, testify to any conversation or transaction between such agent and the opposite party or party in interest, such opposite party or party in interest may testify concerning the same conversation or transaction. Third. Where, in any such action, suit or proceeding, any such party suing or defending, as aforesaid, or any persons having a direct interest in the event of such action, suit or proceeding, shall testify in behalf of such party so suing or defending, to any conversation or transaction with the opposite party or party in interest, then such opposite party or party in interest, shall also be permitted to testify as to the same conversation or transaction. Fourth. Where, in any such action, suit or proceeding, any wit- ness, not a party to the record, or not a party in interest, or not an agent of such deceased person, shall, in behalf of any party to such action, suit or proceeding, testify to any conversation or admission by any adverse party or party in interest, occurring before the death and in the absence of such deceased person, such adverse party or party in interest may also testify as to the same admission or conversation. Fifth. When, in any such action, suit or proceeding, the deposition of such deceased person shall be read in evidence at the trial, any adverse party or party in interest may testify as to all matters and things testified to in such deposition by such deceased person, and not excluded for irrelevancy or incompetency. Hurds' Rev. Stat., chap. 51, sec. 2, p. 858. As to section 2 of the evidence act, regarding competency, see Laurence v. Laurence, 164 111. 367. Under certain circumstances, the defendant may be called as a witness by the plaintiff under a bill of discovery. Hair Co. v. Daily, 161 111. 379. In any action, suit or proceeding by or against any surviving partner or partners, joint contractor or joint contractors, no ad- verse party or person adversely interested in the event thereof, shall, 524 A DIGEST OF [Part III. by virtue of section 1 of this act (removing disqualifications because of interest) be rendered a competent witness to testify to any ad- mission or conversation by any deceased partner or joint contractor, unless some one or more of the surviving partners or joint con- tractors were also present at the time of such admission or con- versation; and in every action, suit or proceeding a party to the same who has contracted with an agent of the adverse party — the agent having since died — shall not be a competent witness as to any admission or conversation between himself and such As to civil procedure, see Order XXXVII. to Judicature Act of 1875. As to criminal procedure, see 11 & 12 Vict. c. 42, for prelim- inary procedure, and the rest of this chapter for final hearings. lf j The law as to commissions to take evidence is as follow-: The root of it is 13 Geo. III. e. 53. Sect. 40 of this Act provides for the Chap. XVI.] TEE LAW OF EVIDENCE. 581 (c) before any officer of the Court or any other person or persons appointed for that purpose by the Court or a judge under the Judicature Act, 1875, Order XXXVII., Rule 5. Oral evidence taken upon a preliminary hearing may, in the cases specified in Articles 140-142, he recorded in the form of a deposition, which deposition may he used as a documentary evidence of the matter stated therein in the cases and on the conditions specified in Chapter XVII.. Oral evidence taken in open court must be taken accord- ing to the rules contained in this chapter relating to the examination of witnesses. 17 Oral evidence taken under a commission must be taken in the manner prescribed by the terms of the commission. 18 Oral evidence taken under a commission must be taken in the same manner as if it were taken in open court; but the examiner has no right to decide on the va- issne of a commission to the Supreme Court of Calcutta (which waa first established by that Act) and the corresponding authorities at Madras and Bombay to take evidence in cases of charges of misde- meanour brought against Governors, &c, in India in the Court of Queen's Bench. Sect. 42 applies to parliamentary proceedings, and s. 44 to civil cases in India. These provisions have been extended to all the colonies by 1 Will. IV. c. 22, and so far they relate to civil proceedings to the world at large. 3 & 4 Vict. c. 105, gives a similar power to the Courts at Dublin. See as to cases in which commissions will not be granted, In re Boyce, Crofton v. Crofton, 1882, 20 Ch. Div. 760; and Berdan v. Greenwood, 1880, ibid., in note, 764; also Langen v. Tate, 1883, 24 Ch. Div. 322; Lawson v. Vacuum Brake Co., 1884; 27 Ch. Div. 137. "Taylor, s. 513. l8/d.'s. 512. 582 A DIGEST OF [Part III. lidity of objections taken to particular questions, but must record the questions, the fact that they were objected to, and the answers given. 19 If secondary evidence of the contents of any docu- ment is not objected to on the taking of a commission it cannot be objected to afterwards. 20 Oral evidence given on affidavit must be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which state- ments as to his belief and the grounds thereof may be ad- mitted. The costs of every affidavit unnecessarily setting forth matters of hearsay or argumentative matter, or copies of or extracts from documents, must be paid by the party filing them. 21 When a deposition, or the return to a commission, or an affidavit, or evidence taken before an examiner, is used in any court as evidence of the matter stated therein, the party against whom it is read may object to the reading of anything therein contained on any ground on which he might have objected to its being stated by a witness examined in open court, provided that no one is entitled to object to the reading of any answer to any question asked by his own representative on the execution of a commission to take evidence. 10 Robinson v. Davies, 1879, 5 Q. B. D. 26. 20 R. S. C, Order XXXVIII., 3. 21 Taylor, 8. 548. Hutchinson v. Bernard, 1836, 2 Moo. & Rob. 1. Chap. XVL] THE LAW OF EVIDENCE. 583 AMERICAN NOTE. General. An answer is not evidence if the oath is waived. Bickerdike v. Allen, 157 111. 95. Unverified pleas are not evidence. Shepard v. Wells, 70 111. App. 72. A sworn answer in chancery has no weight as evidence. Beimel v. Brown, 136 111. App. 586, 593. Affidavits. — As to affidavits generally, see Hurd's Rev. Stat., chap. 110. Affidavits are prima facie evidence of book accounts on default. Hurd's Rev. Stat., chap. 110, sec. 38, p. 1289. Ex parte affidavits are admissible only by consent. Bressler v. McCune, 56 111. 475. An affidavit in support of an application for change of venue is not admissible. Ohio, etc., Ry. Co. v. Levy, 134 Ind. 343. New Jersey. Depositions.— G. S. 1895, " Evidence," 25-46, 63, 64, 66, 67. Commissions out of courts of other States. G. S. 1895, " Evi- dence," 49, 50. Commissions to take testimony as to the execution of a will. G. S. 1895, " Orphans' Courts," 253. Depositions in contested election cases. G. S. 1895. " Elections," 118-121. In divorce, defendant not appearing. Laws of 1902, chap. 135. Depositions. — The execution, return, and use of depositions. Perry v. Thompson, 1 Harr. 72; Laiorence v. Finch, 17 N. J. Eq. 234; Saltar v. Applegate, 3 Zab. 115; Ludlam v. Broderick, 3 Green, 269; Moran v. Green, 1 Zab. 562. A deposition taken in a former action between the same parties is not of itself admissible. Trimmer v. Larrison, 3 Hal. 56. Depositions taken when no suit is pending excluded. Lummis v. Slratton, Pen. 245; Layton v. Cooper, Pen. 65; Bickman v. Pissant, Coxe, 220; Camden d Amboy R. Co. v. Stewart, 19 N. J. Eq. 343, 21 N. J. Eq. 484. Copies of a church parish register admissible in evidence as part of a deposition. Hancock v. Catholic Benev. Legion, 67 N". J. L. 614. 584 A DIGEST OF [Part III. For any part of a deposition to be admissible the whole must be before the court. Lanahan V. Lawton, 50 N. J. Eq. 276, 79*6. Testimony de bene esse. — G. S. 1895, " Evidence," 59, 64 ; Laws of 1902, chap. 143; Laws of 1903, chap. 135. Testimony of a party to the suit may be taken by commission or de bene esse. G. S. 1895, "Evidence," 11. Reasons for taking a deposition de bene esse, and the notice, must appear in the commissioner's certificate. Oral testimony not admis- sible. Case v. Garret son, 54 N. J. L. 42. Maryland. Depositions in general. — Jackson v. Jackson, 80 Md. 176; Cover v. Smith, 82 Md. 586. Commissions. — Commissions to take testimony in the State. P. G. L. 1888, art. 35, sees. 17-29. Commissions to take testimony out of the State. P. G. L. 1SSS, art. 35, sees. 15, 16. Commissions to take evidence from other States. P. G. L. 1888, art. 35, sec. 34. Boundaries. — Commissions to perpetuate boundaries of lands. P. G. L. 1888, art. 35, sees. 30-33. Seamen. — Evidence of seamen taken de bene esse. P. G. L. 1888, art. 84. sec. 9. Notice of the issuance of a commission. — B. & O. R. Co. v. State, 60 Md. 449; Tracers v. Waters, 35 Md. 531; Cherry v. Baker, 17 Md. 75; Law v. Scott, 5 H. & J. 438; Hatton v. McClish, 6 Md. 407: Young v. Mackall, 4 Md. 362. Execution of the commission. — Ecker v. McAllister, 45 Md. 290; Insurance Co. v. Bossiere, 9 G. & J. 121; Burner v. Biercy, 40 Md. 212: Matthews v. Dare, 20 Md. 248; Walkup v. Bratt, 5 H. & J. 51. Foreign commissions. — Little v. Edwards, 69 Md. 499; Goodman v. Wineland, 61 Md. 449; Sewell v. Gardner, 48 Md. 178; Crichton v. Smith, 34 Md. 42. Depositions de bene esse. — Quynn v. Carroll, 22 Md. 288; Wil- liams v. Banks. 5 Md. 198: Matthews v. Dare. 20 Md. 248: Collins v. Elliott, 1 IT. & J. 1 : Brydcn v. Taylor, 2 H. & J. 396; Lingan v. Henderson, 1 Bland, 236 (aged and infirm witness). Pennsylvania. Depositions. — Pepper & Lewis' Digest of Laws, " Evidence," sees. 1-.": "Justices of the Peace," sees. S6-96 ; "Witnesses," sec. 19. Chap. XVI.] TEE LAW OF EVIDENCE. 585 Depositions. — Brown v. Com., 73 Pa. 321. Deposition of a dying man is not admissible if there was no op- portunity for cross-examination. Pringle v. Pringle, 59 Pa. 281. Deposition admissible after the party's death. Evans v. Reed, 78 Pa. 415; Speyerer v. Bennett, 79 Pa. 445. The deposition of one who has lost his memory from old age is admissible. Emig v. Diehl, 76 Pa. 359. A deposition taken at the instance of one party may be given in evidence by the other. O'Connor v. Iron Mt. Co., 56 Pa. 234; Smith v. Austin, 4 Brewst. 89. When objections to a deposition must be made. Hilt, v. Canpeld, 63 Pa. 77. Evidence of a witness before a coroner taken down by a bystander not admissible. McLain v. Com., 99 Pa. 86. Article 126.* examination in chief, cross-examination, and re-examination. Witnesses examined in open court must be first exam- ined in chief, then cross-examined, and then re-examined. Whenever any witness has been examined in chief, or has been 22 intentionally sworn, or has made a promise and declaration as hereinbefore mentioned for the purpose of giving evidence, the opposite party has a right to cross- examine him ; but the opposite party is not entitled to cross-examine merely because a witness has been called to produce a document on a subpoena duces tecum, or in order to be identified. After the cross-examination is concluded, the party who called the witness has a right to re-examine him. The Court may in all cases permit a witness to be re- called either for further examination in chief or for fur- * See Note XLV. 22 See Cases in Taylor, s. 1429. 586 A DIGEST OF [Part III. ther cross-examination, and if it does so, the parties have the right of further cross-examination and further re- examination respectively. If a witness dies, or becomes incapable of being further examined at any stage of his examination, the evidence given before he became incapable is good. 23 If in the course of a trial a witness who was supposed to be competent appears to be incompetent, his evidence may be withdrawn from the jury, and the case may be left to their decision independently of it. 24 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 431 et seq.; 8 Encyclopaedia of Pleading and Practice, p. 70 et seq. Witness to produce document. — Aiken v. Martin, 11 Pai. 499; Calderon v. O'Donahue, 47 Fed. Rep. 39; Stiles v. Allen, 5 Allen (Mass.), 320. Order of proof discretionary. — The order of testimony is discre- tionary with the judge. Bruce v. Kelly, 7 J. & S. 27. See Foster v. Xewbrough, 58 N. Y. 481, reversing 66 Barb. 645 ; Levy v. People, 80 N. Y. 327 ; Neil v. Thome, 88 N. Y. 270 ; Smith v. McGoioan, 3 Barb. 404; Staring v. Bowen, 6 Barb. 109; Bedell v. Powell, 13 Barb. 183; People v. Ruloff, 11 Abb. Pr. (N. S.) 245; Stock v. he Boutiller, 19 Misc. Rep. 112, 43 N. Y. Supp. 248, affirming 18 Misc. Rep. 349; Matter of Beck, 6 App. Div. 211; affirmed, on opinion below, in 154 N. Y. 750 ; Decker v. Gaylord, 35 Hun, 584. The examination of witnesses is largely within the discretion of the court. Griffin v. Domas, 22 111. App. 203; Smith v. Hays, 23 111. App. 244. Where a witness is excluded from the courtroom and enters con- 23 R. v. Doolin, 1832, 1 Jebb, C. C. 123. The judges compared the case to that of a dying declaration, which is admitted though there can be no cross-examination. 24 R. v. Whitehead, 1866, 1 C. C. R. 33. Chap. XVI.J THE LAW OF EVIDENCE. 587 trary to the order of the court, he may be admitted as a witness in the discretion of the court. Bow v. People, 160 111. 439. . Evidence may be admitted for one purpose only and not for all. C, R. I. & P. R. R. Co. v. Clark, 108 111. 113. It is the duty of the court to exclude improper testimony. Barr v. W. C. M. & M. Co., 5 Brad. 442. Evidence offered but excluded is not to be considered. Hcrsey v. West over, 11 Brad. 197. The court need not allow the repetition of questions. Blacking- ton v. Tebbals, 17 111. App. 456; Buck v. Haddock, 167 111. 219, 67 111. App. 466; Thomas v. Chicago, 152 111. 292. One has not the right to have evidence repeated. Buck v. Mad- docks, 67 111. App. 466. If there is evidence tending to establish the cause of action the case should go to the jury. C, M. <£• St. P. Ry. Co. v. Walsh, 157 111. 072. In order to fix the date, the whole of an ordinance need not be introduced. Chicago v. W. & L. Co., 14 Brad. 219. The court decides whether there is any evidence; the jury as to the weight of evidence. Luxen v. C. cG G. T. Ry. Co., 69 111. App. 648. Re-examination. — Morton v. Zwierzykoicski, 192 111. 328, 61 N. E. 413, affirming 91 111. App. 462; Ackerstadt v. Chicago City Ry. Co., 194 111. 616, 62 N. E. SS4, affirming 94 111. App. 130. Recalling witness. — Recalling witnesses is discretionary with the court. Russel v. Martin, 2 Scam. 493. The court may refuse to allow the witness to be recalled for the purpose of further cross-examination. C. & A. Ry. Cu. v. Eaton, 62 N. E. 784, affirming 96 111. App. 570. As to form of questions, see C. & A. Ry. Co. v. Eaton, 62 N. E. 784, affirming 96 111. App. 570; Illinois Steel Co. v. Ostrowski, 194 111. 376, 62 N. E. 822, affirming 93 111. App. 57. A question cannot assume the existence of facts not proved. Erie ct- P. D. v. Cecil, 112 111. 180, 186; Mida v. Geissman, 17 111. App. 207, 211; Myer v. Krohn, 114 111. 581. The court should not ordinarily interfere in the examination of a witness. The examination is not generally the province of the court. Miland v. Meiswinkel, 82 111. App. 522. The court may ask questions and allow cross-examination based upon them. Cooper v. Randall, 59 111. 317; Foreman v. Baldwin, 24 111. 298, 306. 5S8 A DIGEST OF [Part III. Demurrer to evidence. — Rothchild v. Brusche, 131 111. 2G5. Offering evidence. — Evidence must be offered specifically. Russell v. Luke, 68 111. App. 440. As to the effect of withholding evidence, see Bornhofen v. Greene- baum, G8 111. App. 645. Objections. — Objections to evidence must be made at the trial. Wilkinson v. Ward, 42 111. App. 541; McCartney v. Loomis, 61 111. App. 364. Objections to evidence not made are waived. Allen v. Mason, 17 111. App. 3 IS, 320. Objections to be available on appeal must be specific. Hunting- ton v. Aurand, 70 111. App. 28; P. S. P. Co. v. Sharp, 67 111. App. 477; C. & A. Ry. Co. v. Logue, 58 111. App. 142. Motion to strike out. — If a question be proper, irrelevant portion* of the answer are to be stricken out on motion. A. M. U. Ex. Co. v. Gilbert, 57 111. 468. Objections to be specific. — Bank v. Colter, 61 Ind. 153; City v. Lowcry, 74 Ind. 520; Farnam v. Lauman, 73 Ind. 568; Railway Co. v. Parker, 97 Ind. 91 ; Underwood v. Linton, 54 Ind. 468. Those on the ground that the evidence is improper, immaterial, or in- competent, are too indefinite. Noftsger v. Smith, 6 Ind. App. 54; McCloskey v. Davis, S Ind. App. 190; Litten v. Wright School Tp. y 127 Ind. 81; Evansville, etc., R. R. Co. v. Fcttig, 130 Ind. 61; Miller v. Dill, 149 Ind. 326: Mortgage Trust Co. v. Moore. 150 Ind. 465; Sicaim v. Sicaim, 134 Ind. 596; Bass v. State, 136 Ind. 165; Keesling v. Doyle, 8 Ind. App. 43; Baldwin v. Runyan, 8 Ind. App. 344; State ex rel. v. Hughes, 19 Ind. App. 266; Rhea v. Crunk, 12 Ind. App. 23; Board, etc. v. O'Connor, 137 Ind. 622; Indiana, etc., Co. v. Wagner, 138 Ind. 658; T T oss v. Slate ex rel., 9 Ind. App. 294; Diether v. Ferguson, etc.. Co., 9 Ind. App. 173; Wabash, etc., Union v. James, 8 Ind. App. 449; Lankford v. State, 144 Ind. 428; Stratton v. Lockhart, 1 Ind. App. 380; Pennsylvania Co. v. Horton. 132 Ind. 189; Ohio, etc., Ry. Co. v. Wrape, 4 Ind. App. 108; Chicago, etc., R. R. Co. v. Champion, 9 Ind. App. 510; Crabs v. Mickle, 5 Ind. 145. Admission of evidence conditionally. — Where the competency of evidence depends upon proof of other facts, it may be admitted on condition that such proof shall be supplied. Shcpard v. Gobcn, 142 Ind. 318. Slang in question. — A question should not include an obscure slang phrase. Whitney v. State, 154 Ind. 573. Chap. XVI.] THE LAW OF EVIDENCE. 589 Irresponsive answers. — Irresponsive answers are to be stricken out. Shelley v. Bail, 27 Ind. App. 87. Separating witnesses. — Witnesses may be separated. Xenia Real Estate Co. v. Macy, 147 Ind. 568. As to separating witnesses, see State v. David, 25 Ind. App. 296. Eill of exceptions. — As to setting out evidence in a bill of excep- tions, see Bank v. Colter, 61 Ind. 153; Nudd v. Holloway, 43 Ind. 366; Watt v. De Haven, 55 Ind. 128. As to bills of exceptions, see Anderson v. Lane, 32 Ind. 102; Burdick v. Hunt, 43 Ind. 381; Lee v. State, 88 Ind. 256; Citizens' Co. v. Harris, 108 Ind. 392; Railway Co. v. Quick, 109 Ind. 295. Practice. — A person may choose his own way in introducing evi- dence. Bums v. Harris, 66 Ind. 536; Clawson v. Loicry, 7 Blackf. 140; Ginn v. Collins, 43 Ind. 271. The mode of testifying is subject to the discretion of the court. Snyder v. Nations, 5 Blackf. 295. If evidence is competent as to some parties and incompetent as to others, the court should be requested that it should be considered as against the former one. Smith v. Weiser, 11 Ind. App. 468; Thistleweight v. Thistlewcight, 132 Ind. 355; Benjamin v. Mc- Elwaine Co., 10 Ind. App. 76. Written evidence does not go to the jury-room. Nichols v. State, 65 Ind. 512. Contracts sued on may, if the court so rules, be taken to the jury- room. Snyder v. Braden, 58 Ind. 143. As to fees of witnesses, see Schlicht y. State, 56 Ind. 173; Good- ■win v. Smith, 68 Ind. 301; Railroad Co. v. Johnson, 108 Ind. 126. The jury pass upon the weight of evidence. Durham v. Smith, 120 Ind. 463. Anticipating defense. — Evidence anticipating the defense is no part of the plaintiff's original case and is properly excluded when offered as such. Barnett v. Farmers' Mut. Fire Ins. Co., 115 Mich. 247. Examination by court. — The court may. in taking up a witness to examine him in an improper manner, commit error. Darrow v. Pierce. 91 Mich. 63, 51 X. W. 813. Attendance of witnesses. — The attempt to prevent the attendance of one as a witness who has not yet been subpoenaed is a contempt of court. Montgomery v. Muskegon Circuit Judge, 100 Mich. 436. 590 A DIGEST OF [Pabt III. The court has power to detain witnesses in a criminal trial upon a proper showing, but the witnesses have a right to be heard before committed. Lewellen's Case, 104 Mich. 318. Reopening case. — The court at its discretion may reopen the case and permit the plaintiff to introduce more direct testimony after the defendant has rested. This practice is not approved. M inkle y v. Spring swells Tp., 113 Mich. 347. Failure to produce evidence. — Failure to produce evidence within the control of a party, and which would naturally be produced, may be commented upon before the jury. Battersbee v. Calkins, 8 Det. L. N. 778, 87 N. W. 760. New Jersey. Recalling witnesses. — With permission of the court, a witness may be recalled for re-examination on new matter. Osborne v. O'Reilly, 34 N. J. Eq. 60. Order of proof. — Order of proof in discretion of the trial court. Donnelly v. State, 20 N. J. L. GUI; Bodee v. Stale, 57 X. J. L. 140. Objecting to evidence. — Time objection must be made. An objec- tion made after the incompetent question is answered conies too late. Cunningham v. State, Gl X. J. L. 67. A verdict will not be set aside on the ground that improper evi- dence was received when no objection was made to it3 admission. Den. v. Geiger, 4 Hal. 225; Den. v. Doicnam, 1 Green, 135; Coil v. Wallace, 4 Zab. 291; Meeker v. Boijlan, 28 X. J. L. 274; Dare v. Moore, Coxe. 94. An objection to evidence without stating ground therefor is disre- garded. Mooney v. Peck, 49 X. J. L. 232. When offered evidence has been excluded, the exception must state the grounds upon which the offer was made. Dale v. See, 51 X. J. L. 378. On error a party cannot contend that evidence was not admissi- ble for reasons not set up at tbe trial. Hustis v. Banister Co., 64 X. J. L. 279. Unresponsive answers. — Unresponsive answers may be stricken out on motion of the party asking the questions. Guild v. Aller, 2 Harr. 310. An answer irrelevant in part only will be stricken out only in part. Delaney v. State, 51 N. J. L. 37. Chap. XVI.] THE LAW OF EVIDENCE. 591 Last paragraph of test. — Hon fort v. Roioland, 38 N. J. Eq. 181. Examination of witnesses in chancery. — G. S. 1895, "Chancery," 43-46, 132. Maryland. Order of proof. — A party may introduce his evidence in the order he chooses, and cannot be compelled to state in advance what his subsequent evidence will be. Patterson v. Crowther, 70 Md. 124; Life Ins. Co. v. Dempsey, 72 Md. 288; Jerry v. Townshend, 9 Md. 145; Plank Road Co. v. Bruce, 6 Md. 457. Usually the plaintiff may complete his evidence before the defend- ant has a right to introduce any, but in libel the defendant may introduce evidence to show that the communication was privileged before the plaintiff has concluded. Maurice v. Worden, 54 Md. 233. The trial court has discretion to allow evidence to be introduced at a later stage than that at which it should have been. Railroad Co. v. Slack, 45 Md. 161. No appeal lies from the orders of the trial court on matters of the order of proof. Bannon v. War field, 42 Md. 22; Lurssen v. Lloyd, 76 Md. 360. Recalling a witness. — The court has discretion to recall a witness to state what his testimony was. Green v. Ford, 35 Md. 82. The court has discretion to allow a witness to be recalled for examination on matters concerning which he has already testified. Trustees v. ffcise, 44 Md. 453; Girault v. Adams, 61 Md. 1; Young v. Omohundro, 69 Md. 424; Swartz v. Chickering, 58 Md. 290; Bar- num v. Barnuni, 42 Md. 251. Witnesses may be recalled to the stand within the discretion of the trial court. Brown v. State, 72 Md. 46S ; Waters v. Waters, 35 Md. 531; Schioartze v. Yearly, 31 Md. 270. Reopening case. — A refusal of the trial court to allow further evi- dence to be presented after the case has been closed is no ground for reversal. Rickctls v. Pendleton, 14 Aid. 320; Sellers v. Zim- mermann, 18 Md. 255; Williams v. Brailsford, 25 Md. 12G. Tha trial court lias discretion to allow a party to introduce fur- ther testimony after he has closed his case. Berry v. Derwart. 55 Md. 66. Even though a motion has been made based upon the in- sufficiency of the evidence. Ollendorff v. Kanne, 66 Md. 495. Death of witness during examination. — A deposition is admissible although the witness died before cross-examination. Scott v. Mc- Cann, 76 Md. 47. 592 A DIGEST OF [Part III. Mode of examining witness. — Appeal does not lie from the action of the trial court in allowing further examination-in-chief after cross-examination. New York, etc., li. Co. v. Jones, 94 Md. 24. The same question may be asked a witness more than once, in the discretion of the trial court. Brown v. State, 72 Md. 477. A witness' attention may be called to a portion of his testimony which he left doubtful in order to make it clear. Frisby v. Park- hurst, 29 Md. 58. Excluding witnesses from courtroom. — Witnesses may be ex- cluded from the courtroom, but a witness' disobedience of the court's order affects the weight of his testimony and not its competency, un- less such disobedience was by the fault of the party calling the wit- ness. Parker v. State, 07 Md. 329. Offers of evidence. — The court is under no duty of passing on an offer of evidence when there are no witnesses to sustain it. Esch- bach v. Hurtt, 47 Md. 61. An objection to evidence on the ground that it is offered at an improper time is within the discretion of the trial court. Cren- shaw v. Stye, 52 Md. 140. Objections to evidence en masse. — A general objection to a mass of evidence should be overruled if any part of it is admissible. Burgoon v. BixJer, 55 Md. 384; Everett v. ~S J eff, 28 Md. 176; Morri- son v. Whiteside, 17 Md. 452; Budd v. Brooke, 3 Gill, 198; Curtis v. Moore, 20 Md. 93; Levy v. Taylor, 24 Md. 282; Oelrichs v. Ford, 21 Md. 489; Wheeler v. Harrison, 94 Md. 147; Scarlett v. Academy of Music, 46 Md. 132. A general exception to the competency of a witness will be over- ruled if he is competent for any purpose. Brewer v. Bowersox, 92 Md. 567. If offered evidence be admissible for any one of several purposes mentioned, a general objection to it will be overruled. Xutwell v. Tongue, 22 Md. 410. Time for objecting. — Objections to evidence must be made when it is offered or within a reasonable time thereafter; they come too late after argument to the jury has begun. Lamb v. Taylor, 67 Md. 85: Bull v. Schuberth. 2 Md. 38; Dent v. Hancock, 5 Gill, 120. When evidence has been introduced and prayers based upon it, an objection to its admissibility is too late. Davis v. Patton, 19 Md. 120: Cecil Bonk v. Heahl. 25 Md. 562. The right may be reserved to object to evidence after the evidence has been closed. Burton Coal Co. v. Cox, 39 Md. 1. Chap. XVI.] THE LAW OF EVIDENCE. 593 When a question is improper, objection should be made before the question is answered; but if an answer is improper, it may be stricken out on motion. B. & 0. R. Co. v. Shipley, 39 Md. 251. Evidence not objected to. — When evidence has been admitted with- out objection it ought to be given as much weight as if it were ad- missible according to the rules of evidence. Bank v. Duvall, 7 G. & J. 78; Slinghiff v. Builders' Supply Co., 89 Md. 557. Evidence which has not been objected to at the trial will be treated on appeal as admissible. Atwell v. Grant, 11 Md. 101. Admitting evidence subject to exception. — When evidence has been admitted subject to objection, such objection must be made either before or at the end of the testimony. Roberts v. Bonaparte, 73 Md. 191. Assurance of counsel that evidence is relevant. — Evidence seem- ingly irrelevant may be admitted on the assurance of counsel that his subsequent evidence will show its relevancy. Davis v. Calvert, 5 G. & J. 269. If counsel's assurance is not made good, the evidence will be ex- cluded on proper motion. Herrick v. Sivomley, 56 Md. 439. Evidence admitted by agreement. — The affidavit of a witness may be admitted in place of having him orally examined, by agreement of the parties. Scaggs v. B. d W. R. Co., 10 Md. 269. Motion to strike. — When a question is proper but the answer is irrelevant it will be stricken out on motion. Brasheurs v. Orme, 93 Md. 442. A motion, made after the close of the testimony, to exclude evi- dence given without objection comes too late. North Bros. v. Mal- lory, 94 Md. 305. A motion to strike out a mass of testimony will be denied if any of it was proper. Walker v. Schindel, 58 Md. 360. Irresponsive answers. — Answers that are not responsive to the question may be stricken out on motion. ' May field v. Kilgonr, 31 Md. 240; Wise v. Ackerman, 76 Md. 375. Withdrawing evidence. — Where evidence has been admitted over objection, the party introducing it may before the case is argued withdraw it from the consideration of the jury. Life Ins. Co. v. Martins, 32 Md. 310; Littig v. Birkestack. 38 Md. 158. Rebuttal. — Evidence which could have been introduced in chief is not admissible in rebuttal. Cumb. & Pa. R. Co. v. Slack. 45 Md. 161; Bannon v. Warfield, 42 Md. 22; Donohue v. Shedrick, 46 Md. 226; Davis v. Hamblin, 51 Md. 525. 38 594 A DIGEST OF [Part III. If a plaintiff offers evidence in rebuttal of an anticipated defense he must complete his evidence on the subject then. Herrick v. Swomley, 56 Md. 439; Dugan v. Anderson, 36 Md. 567. Testimony in rebuttal is not inadmissible merely because it is inconsistent with the evidence in chief. Whitridge v. Rider, 22 Md. 548. The court has discretion to allow evidence in rebuttal that would have been more properly introduced at first, if it has been omitted inadvertently. Stirling v. Stirling, 64 Md. 138. Evidence that is merely cumulative is not proper in rebuttal. Brown v. Ward, 53 Md. 376. The taking of testimony in chancery. — P. G. L. 1888, art. 16, sees. 216-233. Election contests. — How evidence is taken in contested election cases. P. G. L. 1888, art. 33, sees. 95-106. Pennsylvania. Order of proof. — The order of evidence is in the discretion of the trial judge. Collins v. Freas, 77 Pa. 493; Smith v. Myler, 22 Pa. 36; Lauchner v. Rex, 20 Pa. 464; Garrigues v. Harris, 17 Pa. 344; Helfrich v. Stem, 17 Pa. 143; Harden v. Hays, 14 Pa. 91; Young v. Edwards, 72 Pa. 257. The court may permit rebuttal testimony to be given in anticipa- tion. Carey v. Bright, 58 Pa. 70; Bowers v. Still, 49 Pa. 65; Levers v. Van Buskirk, 4 Pa. 309; Schnable v. Doughty, 3 Pa. 392; Eisenhart v. Slaymaker, 14 S. & R. 153. Evidence is generally not allowed in rebuttal which might have been given in chief. Stetson v. Croskey, 52 Pa. 230; Young v. Ed- wards, 72 Pa. 257; Acklin v. McCalmont Co., 201 Pa. 267. But the court has discretion. Gaines v. Com., 50 Pa. 319; Boyle v. Mc- Kinley, 6 Phila. 172. The accused was allowed to be called for cross-examination dur- ing the time the State was introducing its testimony in rebuttal. Com. v. Eisenhoicer. 181 Pa. 470. The court may permit witnesses to be called out of order and after a party has rested his case. Com. v. Wilson, 186 Pa. 1. In divorce the respondent may call the libellant as for cross-exami- nation. Costello v. Costello, 191 Pa. 379. It is in the discretion of the court to permit repetition of a for. mer statement by a witness. Aiken v. Stewart, 63 Pa. 30. Chap. XVI.] THE LAW OF EVIDENCE. 595 Recalling witness. — The court may permit a witness to be re- called to give further testimony. Browne v. Molliston, 3 Whart. 129; Covanhovan v. Hart, 21 Pa. 495; Insurance Co. v. Delpeuch, 82 Pa. 225. Reopening case. — Court may allow a party to reopen his case and put in new testimony. Duncan v. McCullough, 4 S. & R. 480 ; Mo- loney v. Davis, 48 Pa. 512; Frederick v. Gray, 10 S. & R. 182; Hale v. Fink, 9 Watts, 336; Barnhart v. Pettit, 22 Pa. 135. Striking out testimony. — Incompetent testimony must be stricken out at or before the close of the testimony, or the error is not cured. D. & H. Canal Co. v. Barnes, 31 Pa. 193; Railroad Co. v. Butler, 57 Pa. 335; Yeager v. Weaver, 64 Pa. 425. An instruction in the charge to the jury to disregard such testi- mony is too late. R. R. & Coal Co. v. Decker, 82 Pa. 119. When a witness is shown to be incompetent by subsequent evi- dence, the only remedy is an instruction to the jury to disregard his testimony. Rees v. Livingston, 41 Pa. 113; The Dictator, 56 Pa. 290 ; Simons v. Oil Co., 61 Pa. 202 ; Lester v. McDowell, 18 Pa. 91. Striking out incompetent answers to questions. Hamilton v. Railroad Co., 194 Pa. 1. Unresponsive answers. — If an unresponsive answer is allowed to remain without objection, it cannot be objected to on appeal. II an- num v. Pownall, 187 Pa. 292. Testimony of a witness unfinished. — If witness dies before cross- examination his testimony in chief is not admissible at common law. Pringle v. Pringle, 59 Pa. 281. Evidence of a party who dies before examination is complete is good so far as it has been given. Pratt v. Patterson (Sup. Ct. ), 3 L. & Eq. Rep. 45. Cross-examination of a witness lost by death of a party. Hay's Appeal, 91 Pa. 265. Presumption from failure to call a witness. Com. v. Weber, 1G7 Pa. 153; Rice v. Com., 102 Pa. 408. Offers of evidence. — When an offer of evidence as a whole is made, the court may admit it in part and reject the rest, though it is no error to reject it all. Mundis v. Emig, 171 Pa. 417. 596 A DIGEST OF [Pabt IIL Article 127. to what matters cross-examination and re-examina- tion must be directed. The examination and cross-examination must relate to facts in issue or relevant or deemed to be relevant thereto, but the cross-examination need not be confined to the facts to which the witness testified on his examination in chief. The re-examination must be directed to the explanation of matters referred to in cross-examination ; and if new matter is, by permission of the Court, introduced in re- examination, the adverse party may further cross-examine upon that matter. AMERICAN NOTE. General. Authorities. — 1 Wharton on Evidence, sec. 529 ; 1 Greenleaf on Evidence (loth ed.), sees. 445-447, 467. Cross-examination. — The cross-examination in some States must be limited to the matters covered by the direct examination. Hough- ton v. Jones, 1 Wall. 702; Carey v. Hart, 63 Vt. 424; Sullivan v. Railroad Co., 175 Fa. 361; Rigdon v. Conley, 141 111. 565; Richards v. State, 82 Wis. 172; Donnelly v. State, 26 N. J. L. 463, 601; People v. Tan Ewan, 111 Cal. 144: State v. Wright, 40 La. Ann. 589; Wil- liams v. State, 32 Fla. 315; Martin v. Exp. Ins. Co., 85 la. 643; ■State v. Smith, 49 Conn. 376; Chapman v. Loomis, 36 Conn. 460; Burns v. Fredericks, 37 Conn. 91 ; Ashbom v. Waterbury, 69 Conn. 217; State v. Green, 35 Conn. 208. Contra, Blackington v. Johnson, 126 Mass. 21 ; Beal v. Nichols, 2 Gray (Mass.), 262; Moody v. Row- ell, 17 Pick. (Mass.) 490, 498; Merrill v. Berkshire, 11 Pick. (Mass.) 269: Webster v. Lee, 5 Mass. 334; Gerrish v. Cummings, 4 Cush. (Mass.) 391: Stiles v. Allen. 5 Allen (Mass.), 320. Where it is so limited the court has a discretionary power as to how far to permit cross-examination to extend to matters not strictly Chap. XVI.] THE LAW OF EVIDENCE. 597 germane to the direct examination, and no error can be predicated upon the exercise of such discretion. Steene v. Aylesioorth, 18 Conn. 254 ; Chapman v. Loomis, 36 Conn. 466 ; State v. Bradley, 48 Conn. 535; Tompkins v. West, 56 Conn. 484; Dale's Appeal, 57 Conn. 142; State v. Duffy, 57 Conn. 528, 529 ; Tyler v. Waddingham, 58 Conn. 396, 397; Osborne v. Troup, 60 Conn. 498; State v. McCoican, 66 Conn. 392; Spiro v. Nitkin, 72 Conn. 202. Re-examination. — Oakland Ice Co. v. Marcy, 74 Me. 294, 301 ; V. S. v. 18 Barrels, etc., 8 Blatchf. 475; McElheny v. Pittsburgh, etc., R. Co., 147 Pa. 1; Stoner v. Devilbiss, 70 Md. 144; Somerville, etc., R. Co. v. Dougherty, 22 N. J. L. 495; Plow Co. v. Hawthorn, 71 Wis. 529; Farrell v. Boston, 161 Mass. 106; Dote v. Wooldredge, 142 Mass. 161. Scope of cross-examination. — The scope of the cross-examination is largely in the discretion of the court. It is generally limited to matters covered by the direct. Neil v. Thorn, 88 N. Y. 270; Hartness v. Boyd, 5 Wend. 563; Kerker v. Barter, 1 Hill, 101; Be- dell v. Poioell, 13 Barb. 183; Allen v. Bodine, 6 Barb. 383; Fry v. Bennett, 3 Bosw. 200; il/at/er v. People, 80 N. Y. 364; People v. Oyer and Terminer Ct., 83 N. Y. 436; Knight v. Cunnington, 6 Hun. ±00; Hardy v. Norton, 66 Barb. 527. See Langley v. IFadstoorM, 99 N. Y. 61 ; tfare v. Mahoney, 36 N. Y. St. R. 658. Must be germane. — Cross-examination is to be confined to matters covered by the direct. Wheeler & Wilson Mfg. Co. v. Barren, 172 111. 610, 50 N. E. 325, affirming 71 111. App. 222; East Dubuque v. Burhyte, 173 111. 553, 50 N. E. 1077, affirming 74 111. App. 99; Rigdon v. Conley, 141 111. 565; Stevens v. Brown, 12 Brad. 619; Hurlbut v. Meeker, 104 111. 541; Entwistle v. Mcrklc, ISO 111. 9. 54 N. E. 217; Stafford v. Fargo, 35 111. 481; Waller v. Carter, 8 Brad. 511; Adams Express Co. v. Haggard, 37 111. 405; P.. P. J- ./. R. R. Co. v. Laurie, 63 111. 264; Lloyd v. Thompson, 5 Brad. 90; Peru Coal Co. v. Merrick, 79 111. 112; Drohn v. Brewer, 77 111. 280; C <6 A. .%. Co. v. Thompson, 19 111. 578; Hayward v. People, 96 111. 492. The cross-examination of a witness who is an officer of the cor- poration party cross-examining must be confined to matter covered by his direct. East Dubuque v. Burhyte, 74 111. App. 99. A lengthy cross-examination upon matters not covered by the examination in chief is ground for reversal. Bell v. Preitt, 62 111. 361. 598 A DIGEST OF [Pabt III. Need not be germane. — The cross-examination is not limited to matters covered by the direct. Hemminger v. Western Assur. Co., 95 Mich. 355, 54 N. W. 949; Ireland v. C, W. & M. Ry. Co., 79 Mich. 163, 44 N. W. 426; Hay v. Reid, 85 Mich. 296; Child v. De- troit Mfg. Co., 72 Mich. 623. Compare Fox v. Barrett's Estate, 117 Mich. 162. Rebutting testimony. — Where a railroad company was sued for injuries caused by a defective handle-bar on a hand car and intro- duced testimony that the car was found to be safe, for it was examined every morning, it is not error to allow testimony in re- buttal to contradict such testimony of the railroad. Greenfield v. Lake Sh. & M. S. R. R. Co., 117 Mich. 307. New Jersey. Cross-examination. — The cross-examination of an accused must be limited to the matters brought out on his examination in chief. State v. Sprague, 64 N. J. L. 419; Donnelly v. State, 26 N". J. L. 463, 601. A party is not allowed to establish his case substantively by cross-examining his opponent's witnesses. Donnelly v. Slate. 26 N. J. L. 464, 601; Dennis v. Van Toy, 31 N. J. L. 39. Re-examination. — Re-examination limited to explanation of mat- ters brought out on cross-examination. State v. Gedicke, 43 N. J. L. 86. If a witness is asked on cross-examination whether or not he had a certain conversation, he may be asked on re-examination what that conversation was. Railroad Co. v. Doughty, 2 Zab. 495. Maryland. Cross-examination. — Cross-examination is limited to matters brought out on examination in chief. Griffith v. Diffenderffer, 50 Md. 466; Lewis v. Clark, 86 Md. 327. When a witness has testified as to a certain act, he may be cross- examined as to the surrounding circumstances. Duttera v. Baby- lon, 83 Md. 536. The defendant in a criminal case may be cross-examined on all relevant matters, irrespective of the extent of the direct examina- tion. Guy v. State, 90 Md. 29. Collateral matters. — The cross-examination may extend to matters collateral to the examination in chief if thev are connected with Chap. XVI.] THE LAW OF EVIDENCE. &yy and relevant to the matter concerning which he testified. Black v. Bank, 90 Md. 399. Re-examination. — On re-examination the witness may be reminded of what he said on cross-examination in order to explain it. Stoncr v. Devilbiss, 70 Md. 144. A witness may be given the chance on re-examination to explain ambiguous answers given on cross-examination. Schwarize v. Yearly, 31 Md. 270. The court has discretion to allow forgotten or omitted questions to be asked on re-examination, though usually the testimony is then confined to explanation of the cross-examination. Blake v. Stump, 73 Md. 100. Pennsylvania. Cross-examination. — Cross-examination must be confined to those matters brought out on the examination in chief. Floyd v. Bovard, 6 W. & S. 75; Mitchell v. Welch, 17 Pa. 339; Thompson v. Ewing, 1 Brewst. 07 ; Smith v. Philadelphia Trac. Co., 202 Pa. 54 ; Sutch's Es- tate, 201 Pa. 305; Bohan v. Avoca, 154 Pa. 404; Sullivan v. Railroad Co., 175 Pa. 301; Denniston v. Philadelphia Co., 101 Pa. 41. One cannot establish his case substantively by cross-examining his opponent's witnesses. Breinig v. Meitzler, 23 Pa. 150; Helser v. McGrath, 52 Pa. 531; Elhnaker v. Buckley, 10 S. & R. 72; Jackson v. hitch, 02 Pa. 451; Bank v. Strohecker, 9 Watts, 237. This rule applies even where the witness under examination i^ :i party to the suit, though such party may be examined in chief as on cross-examination. M alone v. Dougherty, 7!» l'a. -Hi; Boyd v. Con. Mills, 149 Pa. 303. "It is well settled in this State that the cross-examination of a witness should be confined to matters in regard to which he has been interrogated in chief, or to such questions as may tend to show his bias, interest, or relation to the party calling him, or test his knowl- edge, integrity, and accuracy of statement. A party should not be permitted to establish his claim or to prove his defense by a cross- examination of the witnesses of his opponent. Such is not the pur- pose for which a witness is cross-examined. While this is the rule, yet the range of a cross-examination must, to a very great extent. be left to the sound discretion of the trial judge." Glenn v. Traction €o.. 200 Pa. 137. One cannot cross-examine a witness as to collateral matters merely 600 A DIGEST OF [Part III. for the purpose of discrediting him afterward by contradicting him. Eildeburn v. Curran, 65 Pa. 59. Conversation proved in part on direct examination may be brought out entire on cross-examination. Coal Co. v. Schultz, 71 Pa. 180. Pule when adverse party is called as for cross-examination. Pep- per & Lewis' Digest of Laws, "Witnesses," sec. 21. Discretion of the court. — Bohan v. Avoca, 154 Pa. 404. Re-examination. — McElhcny v. Railroad Co., 147 Pa. 1. The rest of a conversation only partly brought out on direct or cross-exami- nation may be inquired of by opposite party. Walsh v. Porterfield, 87 Pa. 376. One has the right to re-examine his witnesses in rebuttal on mat- ters that require explanation. Acklin v. McCalmont Co., 201 Pa. 257. A witness may not, on re-examination, testify as to irrelevant matter brought out on cross-examination. Smith v. Dreer, 3 Whart. 154. The court may permit new matter to be inquired into on re-exami- nation. Curren v. Connery, 5 Binn. 488. The trial court has discretion to allow questions on re-examination the purpose of which is to secure a repetition of the evidence given in chief. Stern v. Stanton, 184 Pa. 468. Court has discretion to allow a variance from the usual order of giving evidence. Young v. Edwards, 72 Pa. 257. Article 128. leading questions. Questions suggesting the answer which the person put- ting the question wishes or expects to receive, or suggesting disputed facts as to which the witness is to testify, must not, if objected to by the adverse party, be asked in examination in chief, or in re-examination, except with the permission of the Court, but such questions may be asked in cross-examination. Chap. XVI.] THE LAW OF EVIDENCE. 601 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (loth ed.), sees. 434, 435, 445; 1 Wharton on Evidence, sees. 499-504. Leading questions. — Moody v. Itowell, 17 Pick. (Mass.) 498, 28 Am. Dec. 317; Coogler v. Rhodes, 38 Fla. 240; Harvey v. Osborn, 55 Ind. 535 ; People v. Mather, 4 Wend. 229. It is discretionary with the court in both civil and criminal cases to allow leading questions on the direct-examination. Northern Pac. R. Co. v. Prim, 158 U. S. 271; Badder v. Reefer, 91 Mich. 611; Ooudy v. Werbc, 117 Ind. 154; Crean v. Hourigan, 158 111. 301; Green v. Gould, 3 Allen (Mass.), 465; Com. v. Thrasher, 11 Gray (Mass.), 57; Moody v. Rowell, 17 Pick. (Mass.) 490, 498. The judge may himself ask leading questions of a witness. Com. v. Galavan, 9 Allen (Mass.), 271. See Brubaker v. Taylor, 76 Pa. St. 83; Chandler v. Fleeman, 50 Mo. 239; Gabbett v. /Sfparfcs, 60 Ga. 582. Cross-examination. — Stratford v. Sanford, 9 Conn. 284 ; Helfrich v. Stein, 17 Pa. 143; U. S. v. Dickinson, 2 McLean, 325. Numerous items. — Where the examination relates to items too numerous to be thought of by the witness, leading questions may be employed. Huckins v. People's Ins. Co., 31 N. H. 238; Graves v. Merchants' Ins. Co., 82 la. 637. Hostile witness. — In case of a hostile witness, the court may allow leading questions on the direct-examination. State v. Benncr, 64 Me. 267 ; Whitman v. Morey, 63 N. H. 448 ; McBride v. Wallace, 62 Mich. 451 ; Bradshaw v. Combs, 102 111. 428 ; St. Clair v. U. S., 154 U. S. 150; Stratford v. Sanford, 9 Conn. 284; State v. Stevens, 65 Conn. 93. A leading question, when improper, may be replaced by a proper question. Allen v. Hartford Life Ins. Co., 72 Conn. 697. Largely discretionary. — Leading questions are largely within the discretion of the court. Funk v. Babbitt, 55 111. App. 124; Creanv. Hourigan, 158 111. 301: C. & A. By. Co. v. Eaton, 62 N. E. 784, affirming 9G 111. App. 570; Day v. Porter, 1G1 111. 235. Unless the court has greatly abused its discretion with reference to leading questions, a judgment will not be reversed. Gibson Co. v. Glisosinshi, 76 111. App. 400. 602 A DIGEST OF [Part III. As to the effect of leading questions on appeal, see Crean v. Hourigan, 158 111. 301. One cannot complain of a leading question which has not injured him. Bulson v. People, 31 111. 409. Objection. — A general objection to a question does not raise the point that it is leading. First Nat. Bank v. Dunbar, 118 111. 625. Youthful witness. — Leading questions may be refused in the case of youthful witnesses. Coon v. People, 99 111. 368. Instances. — A question " Did you go in voluntarily, or did he pull you in," is leading. Kramer y. Riss, 77 111. App. 623. A question, " What was said, if anything, by the plaintiff, at the time, about his interest?" is not leading. Swartwout v. Evans, 41 111. 376. Leading questions defined. — Harvey v. Osborn, 55 Ind. 535; Jack- son v. Todd, 56 Ind. 406; De Haven v. De Haven, 77 Ind. 236. Leading questions are those which either suggest the answer or which embody a material fact and can be answered by an affirmative or negative. Harvey v. Osborn, 55 Ind. 535 ; De Haven v. De Haven, 77 Ind. 236. Leading questions are proper as to introductory matters. Sohn v. Jervis, 101 Ind. 578. The following question was not excluded as suggestive : " After you saw the elevator at the carriage works, what did Kaiser say about it, if anything." Sievers v. Peters Box, etc., Co., 151 Ind. 642. Error. — In order to be reversible error, a ruling as to leading questions must be injurious. City v. Witman, 122 Ind. 538; Hun- singer v. Hofer, 110 Ind. 390; Snyder v. Snyder, 50 Ind. 492. New Jersey. Example of leading questions. — State v. Mairs, Coxe, 453. Leading questions may be permitted on the examination in chief, largely within the discretion of the court. Chambers v. Hunt, 2 Zab. 552; State v. Fox, 25 N. J. L. 566; Hershon v. Hobensack, 2 Zab. 372, 3 Zab. 580. Maryland. Leading questions. — A question is leading when it embodies a ma- terial fact and allows of the answer yes or no. Lee v. Tinges, 7 Md. 216. Introductory leading questions merely directing the witness' atten- Chap. XVI.J THE LAW OF EVIDENCE. 603 tion to the subject-matter of the examination are not objectionable on direct examination. Bushman v. Morling, 30 Md. 3S4. The court may in its discretion permit leading questions to be asked. Frownfelter v. State, 00 Md. 80; 8 toner v. Devilbiss, 70 Md. 144. Time for objecting. — An objection to a question on the ground that it is leading, made after the question is answered, comes too late. Washington F. I. Co. v. Davison, 30 Md. 91 ; Jones v. Jones, 36 Md. 447. Objection on the ground that a question is leading must be made at the time it is propounded, so that if need be the form can be changed. Smith v. Cooke, 31 Md. 174; Kerby v. Kerby. 57 Md. 345; Brown v. Hardcastle, 63 Md. 484. Pennsylvania. Leading questions. — A leading question is one so framed as to indicate the answer desired. Snyder v. Snyder, 6 Binn. 483; Selin v. Snyder, 7 S. & R. 166; Summers v. Wallace, 9 Watts, 161; Rail- road Co. v. Quick, 61 Pa. 328. The rule not ironclad. Farmers' Ins. Co. v. Bair, 87 Pa. 124. A leading question must be specifically objected to on that ground. Kemmerer v. Edelman, 23 Pa. 143. Leading questions are permissible on cross-examination, but must be confined to the matters brought out on the examination in chief. H elf rich v. Stein, 17 Pa. 143; Turner v. Reynolds, 23 Pa. 199. Hostile witness. — The opposite party, if called as a witness, may be examined as if on cross-examination. M alone v. Dougherty, 79 Pa. 46. Where a corporation is the defendant, its officers cannot be called adversely for cross-examination ; but if they come under the class of necessary, unwilling, or adverse witnesses, leading questions are proper. Gantt v. Cox, 199 Pa. 208. In an action for damages against a street railway company, the motorman of the car causing the injury cannot be called by the plaintiff as for cross-examination. Callary v. Transit Co., 185 Pa. 176. The court has discretion to permit leading questions on direct examination in the interest of justice. Gantt v. Cox. 199 Pa. 208. Calling adverse party as for cross-examination. — Pepper & Lewis' Digest of Laws, "Witnesses," sec. 21. 604 A DIGEST OF [Part III. Article 129.* questions lawful in cross-examination. When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any ques- tions which tend — (1) To test his accuracy, veracity, or credibility; or (2) To shake his credit, by injuring his character, Provided that a person charged with a criminal offence and being a witness under the Criminal Evidence Act, 1898, may be cross-examined to the effect, and under the circumstances, described in Article 56. Witnesses have been compelled to answer such questions, though the matter suggested was irrelevant to the matter in issue, and though the answer was disgraceful to the witness ; but it is submitted that the Court has the right to exercise a discretion in such cases, and to refuse to compel such questions to be answered when the truth of the matter suggested would not in the opinion of the Court affect the credibility of the witness as to the matter to which he is required to testify. In the case provided for in Article 120, a witness cannot be compelled to answer such a question. Illustration. (a) The question was whether A committed perjury in swearimr that he was R. T. B deposed that he made tattoo marks on the arm of R. T., which at the time of the trial were not and never had been on the arm of A. B was asked and was compelled to answer the * See Note XLVI. Chap. XVI.] THE LAW OF EVIDENCE. 605 question whether, many years after the alleged tattooing, and many years before the occasion on which he was examined, he committed adultery with the wife of one of his friends.25 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (loth ed. ), sees. 445, 446, 451-460; 1 Wharton on Evidence, sees. 527-548. A witness may be compelled to answer questions tending to dis- grace him. The extent to which they may be asked is discretionary with the court. v Eewncker v. Merkey, 102 Pa. 462 ; Storm v. U. 8., 94 U. S. 76; Smith v. State, 64 Md. 25; State v. Hack, 118 Mo. 92; Eelwig v. Lascowski, 82 Mich. 619; Shelby v. Clagett, 46 O. St. 549; South Bend v. Hardy, 98 Ind. 577; Gutterson v. Morse, 58 N. H. 165. To test accuracy, etc. — Tudor Iron Works v. Weber, 129 111. 535; Wallace v. Wallace, 62 la. 651; McFadden v. Santa Anna, etc., R. Co., 87 Cal. 464 : Uniacke v. Chicago, etc., R. Co., 67 Wis. 108 ; State v. Duffy, 51 Conn. 525. Bias, etc. — Questions to show bias, etc., are allowed. Fitzpatrick v. Riley, 163 Pa. 65; County Comrs. v. Minderlein, 67 Md. 567; Hinchcliffe v. Koontz, 121 Ind. 422; People v. Thomson, 92 Cal. 506; Wallace v. Taunton St. R. R. Co., 119 Mass. 91. Collateral matters to affect credibility are not admissible. This is largely a question of discretion. Com. v. Schaffner, 146 Mass. 512; Sullivan v. O'Leary, 146 Mass. 322; Barkley v. Copeland, 86 Cal. 483. The witness may be asked if he has had a lawsuit with one of the parties. Spiro v. Nitkin, 72 Conn. 205. Questions may be asked on cross-examination to show the interest of the witness in the result of the suit. Dore v. Babcock, 72 Conn. 409. Questions to test the moral sense of the witness are not allow- able. Com. v. Shaw, 4 Cush. (Mass.) 593. A witness may be asked if he has been in prison. Com. v. Bon- ner, 97 Mass. 5S7. In a suit by a physician to recover for services rendered by a substitute, the substitute having testified that the charges are 25 R. v. Orton, 1874. See summing-up of Cockburn, C.J., vol. ii. p. 719, &c. COG A DIGEST OF [Part III. reasonable, may be asked on cross-examination what his own fees would have been. Sayles v. Fitz Gerald, 72 Conn. 395. A question intimating that another witness has testified differ- ently from the one under examination is not proper on cross-ex- amination. Turner's Appeal, 72 Conn. 314. A witness may be compelled to answer questions tending to dis- grace him. The extent to which they may be asked is discretionary with the court. Shelly v. Claggett, 46 Ohio St. 549. Motive and interest. — Kent v. State, 42 Ohio St. 426; Turner v. Slate, 5 Ohio Circ. Ct. 537; Boyle v. State, 6 Ohio Circ. Ct. 163; Valley Ry. Co. v. Roos, 9 Ohio Circ. Ct. 201. To show interest. — Questions tending to show the interest of a witness may be asked on cross-examination. T ravers v. Snyder, 3$ 111. App. 379, 386; Aneals v. People, 134 111. 401, 414. Conviction. — The fact that one has been in a reform school cannot be brought out on cross-examination in order to affect credibility; conviction for an infamous crime may, however, be shown. Daxan- beklan v. People, 93 111. App. 533. To test credibility, etc. — Cross-examination may be directed to- matters affecting the credibility of the witness. City v. Hardy, 98 Ind. 577. On cross-examination, the knowledge, judgment or memory of a witness may be tested. Frenzel v. Miller, 37 Ind. 1 ; Oilman v. Gard r 29 Ind. 291. A witness may be compelled to answer questions tending to dis- grace him. The extent to which they may be asked is discretionary with the court. Helwig v. Lascoicski, 82 Mich. 619. New Jersey. Court's discretion. — Extent of cross-examination largely within discretion of the trial court. Derrickson v. Quimby, 43 N. J. L. 376. The manner of cross-examining largely in the discretion of the* trial court. West v. State, 2 Zab. 212; Jones v. Insurance Co., 3ft N. J. L. 30. Impairing credibility: discretion of court. Fries v. Brugler, 12 N. J. L. 79. Former conviction. — The defendant in a criminal case may be asked on cross-examination whether he has ever been convicted of a crime, Chap. XVI.] THE LAW OF EVIDENCE. 607 for the purpose of attacking his credibility; also whether he pleaded nolo contendere. State v. Henson, 66 N. J. L. 601. Interest and bias. — \Yitness may be asked concerning a contract whereby he is to share in the result of the suit. Railroad Co. v. Bailey, 37 N. J. L. 526. Questions to bring out bias or interest in the result of the suit are permissible on cross-examination to discredit the witness. Haver v. Railroad Co., 04 N. J. L. 312. Statute. — Interest may be proved to affect credit. G. S. 1895, " Evidence," 3. Disgracing questions. — Rusling v. Bray, 37 N. J. Eq. 174. A witness cannot be compelled to answer questions that tend to disgrace him, though he may waive his privilege. Vaughn v. Per- rine, Pen. 728; State v. Fox, 25 N. J. L. 566, 599; State v. Bailly, Pen. 415; Fries v. Brugler, 7 Hal. 79; Schenck v. Schenck, Spen. 208. Maryland. Authorities. — Questions to explain or break down the testimony in chief are admissible. Howard v. Oppenheimer, 25 Md. 350. The court has discretion to refuse to allow cross-examination on matters too remote. Gambrill v. Schooley, 95 Md. 260. Inadmissible testimony cannot be brought in under the guise of cross-examination, unless warranted by the examination in chief. Crawford v. Beall, 21 Md. 208. Bias. — Relationship to a .party to the suit, interest, or bias may be shown. Blessing v. Hope, 8 Md. 31. On a second trial of a damage suit a witness may be asked if he had not said that he had helped to get a big verdict for the plain- tiff at the first trial. Wise v. Ackerman. 76 Md. 375. The bias of a witness may be shown, either against a party to the suit or against one who would be liable over in case judgment goes against such party. Commissioners of Somerset v. Minderlein, 67 Md. 567. Accuracy. — Questions tending to test the correctness of an opinion given in chief are proper. Keyser v. State, 95 Md. 96. Questions may be asked testing the witness' accuracy of recollec- tion. Ohlendorff v. Kaunne, 66 Md. 495. Disgracing questions. — A witness will not be compelled to answer questions tending to degrade or disgrace him. Merluzzi v. Gleeaon, 59 Md. 214. 608 A DIGEST OF [Pabt III. A witness may be asked whether he has ever been in jail and why. McLaughlin v. Mencke, 80 Md. 83; Smith v. State, 64 Md. 25 (qucere whether he can be compelled to answer). Pennsylvania. Illustrative cases: Markley v. Swartzlander, 8 W. & S. 172; Bank V. Fordyce, 9 Pa. 275; Jackson v. Litch, 62 Pa. 451; Hughes v. (Joul Co., 104 Pa. 207; Beck v. Hood, 185 Pa. 32; Guckavan v. Traction Co., 203 Pa. 521. Where a witness testified that an accident was caused by the re- moval of sand-boxes from the cars, it is proper on cross-examination to ask him concerning substitutes for the sand-boxes used by the company. Smith v. Philadelphia Trac. Co., 202 Pa. 54. When a party is sworn merely to introduce a book of original entries, the cross-examination must be restricted to the book. Shaw v. Levy, 17 S. & R. 99. A conversation testified to in chief may be brought out entire on cross-examination. Over v. Blackstone, 8 W. & S. 71; Bank v. Donaldson, 6 Pa. 179; Gordon v. Preston, 1 Watts, 385; Stevenson v. Hoy, 43 Pa. 191; Jackson v. Litch, 62 Pa. 451. Cross-examination may cover the entire examination in chief and things closely connected therewith. Hoffman v. Strohecker, 9 Watts, 183; Jackson v. Litch, 62 Pa. 451; Henderson v. Hydraulic Works, 9 Phila. 100. The judge has discretion to exclude unimportant questions. Bank v. Roessler, 186 Pa. 431. Bias and interest. — Questions to show bias and interest are per- missible on cross-examination. Hopkinson v. Leeds, 78 Pa. 396 ; Ott v. Houghton, 30 Pa. 451; Glenn v. Traction Co., 206 Pa. 137: Fitzpatrick v. Riley, 163 Pa. 65. Cross-examination on collateral matters may be limited by the court, but questions directed to the interest or bias of a witness may be asked of right. Beck v. Hood, 185 Pa. 32. Detectives may be cross-examined as to their contract of employ- ment to show interest and feeling in the cause. Com. v. Farrell, 187 Pa. 408. Credibility and accuracy. — Questions bearing on credibility are admissible in the court's discretion. Com. v. Eaton, 8 Phila. 428: Cameron v. Montgomery, 13 S. & R. 128; Batdorff v. Brink, 61 Pa. 179; McKinney v. Reader, 6 Watts, 34; Krider v. Philadelphia, 180 Chap. XVI.J THE LAW OF EVIDENCE. 609 Pa. 78; Glenn v. Traction Co., 206 Pa. 137; Huoncker v. Merkey, 102 Pa. 462; Philadelphia v. Reeder, 173 Pa. 281; Dampman v. Railroad Co., 166 Pa. 520. Cross-examination as to the details of a map made by the witness to test his accuracy of knowledge and observation. Duk v. Railway Co., 164 Pa. 243. Irrelevant questions are permissible in the discretion of the court for testing accuracy. Clark v. Church, 5 W. & S. 266. Questions to show capacity and intelligence of the witness are proper. Yeager v. Weaver, 1 Leg. Gaz. 156. A plaintiff may be asked on cross-examination as to his attempts to corrupt the jury on a previous trial of the case. Beck v. Hood, 185 Pa. 32. Article 129a. judge's discretion as to cross-examination to credit. The judge may in all cases disallow any questions put in cross-examination of any party or other witness which may appear to him [i.e. the judge] to be vexatious and not rele- vant to any matter proper to be inquired into in the cause or matter. 26 AMERICAN NOTE. See note under Article 129. Article 130. exclusion of evidence to contradict answers to questions testing veracity. When a witness under cross-examination has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by 20 R. S. C, Order XXXVI., rule 38. I leave Article 129 as it orig- inally stood; because this Order is after all only an exception to the rule. " Him " must refer to the judge, as it would otherwise refer to the " party or other witness," which would be absurd. 39 610 A DIGEST OF [Part III. injuring his character, no evidence can be given to con- tradict him except in the following cases: — 27 (1) If a witness is asked whether he has been previ- ously convicted of any felony or misdemeanour, and denies or does not admit it, or refuses to answer, evidence may be given of his previous conviction thereof, 28 (2) If a witness is asked any question tending to show that he is not impartial, and answers it by denying the facts suggested, he may be contradicted. 29 AMERICAN NOTE. General. Authorities. — 1 Wharton on Evidence, sec. 559 ; 1 Greenleaf on Evidence (15th ed.), sec. 449. First paragraph of text. Coombs v. Winchester, 39 N. H. 13, 75 Am. Dec. 203 ; Davis v. Roby, 64 Me. 427 ; rullen v. Pullen, 43 N. J. Eq. 136; Robbins v. Spencer, 121 Ind. 594; Buckley v. Silverberg r 113 Cal. 673; Hester v. Com., 85 Pa. 139; Moore v. People, 108 111. 484; Sloan v. Edwards, 61 Md. 89. The witness cannot be contradicted as to collateral matters. State v, Benner, 64 Me. 267; Alexander v. Kaiser, 149 Mass. 321; McGuire v. McDonald, 99 Mass. 49; Com. v. Lyden, 113 Mass. 452. A witness cannot be cross-examined as to irrelevant matters for the mere purpose of contradicting him. Tyler v. Todd, 36 Conn. 224. A party who puts an irrelevant question, on cross-examination, cannot afterwards offer evidence to contradict the answer given. Winton v. Meeker, 25 Conn. 464. Conviction. — Com. v. Bonner, 97 Mass. 587; Com. v. Gorham, 99 Mass. 420. 27 A. G. v. Hitchcock, 1847, 1 Ex. 91, 99-105. See, too, Palmer v. Trower, 1852, 8 Ex. 247. 28 28 & 29 Vict. c. 18, s. 6; re-enacting 17 & 18 Vict. c. 125, s. 25, now repealed. 29 A. G. v. Hitchcock, 1847, 1 Ex. 91, pp. 100, 105. Chap. XVI.] THE LAW OF EVIDENCE. Gil The conviction may be proved by the record or by the answers of the witness on cross-examination. State v. Elwood, 17 R. I. 7G3; State v. McGuire, 15 R. I. 23 : State v. O'Brien, 81 la. 93 ; State v. Sauer, 42 Minn. 258; People v. Crowley, 100 Cal. 478; Burdett v. Com., 93 Ky. 76; Simons v. People, 150 111. 66 (record, criminal cases). Bias. — In a qui iawi action for taking usury, the party who had paid it, having testified to that effect, was asked on cross-examina- tion, whether he had not had a controversy with the defendant, and threatened to be revenged on him for collecting the note alleged to be usurious. Held, that the questions were admissible, and that his answers in the negative might be contradicted by other testimony. Atwood v. Welton, 7 Conn. 70. Collateral matters. — A witness cannot be contradicted as to his testimony on a collateral point, on cross-examination. C, R. I. & St. P. R. R. Co. v. Bell, 70 111. 102; Flansburg v. Basin, 3 Brad. 531; C, B. d Q. R. R. Co. v. Lee, 60 111. 501; East Dubuque v. Burhyte, 173 111. 553, 50 N. E. 1077, 74 111. App. 99; Aneals v. People, 134 111. 401, 414. One is bound by the answers of a witness on cross-examination as to collateral matters. Stalcup v. State, 146 Ind. 270. Compare State ex rel. v. Taylor, 4 Ind. App. 296; Reynolds v. State, 147 Ind. 3; Hinkle v. State, 151 Ind. 237, 61 N. E. 196. Interest.— Tolbert v. Burke, 89 Mich. 132. The bias or interest of a witness may be shown on cross-examina- tion. Swift Electric Light Co. v. Grant, 90 Mich. 469, 51 N. W. 539. Where a witness testifies on cross-examination that he has not been active in procuring testimony, the fact that he has been active may be proved. Hamilton v. People, 29 Mich. 173. If a witness answers questions concerning interest, conviction or relationship to the party, on cross-examination, his answers may be contradicted. Helwig v. Lascouxlci, 82 -Mich. 619. One who has denied on cross-examination that he has ever been convicted may be impeached by proving the record, ndwig v. Laseowski, 82 Mich. 619. Cross-examining counsel are bound by the answers of witnesses, upon collateral matters. Hitchcock v. Burgett, 38 Mich. 501. 612 A DIGEST OF [Part III. New Jersey. Statutory rule similar. — G. S. 1895, "Evidence," 9. Authority.— Pullen v. Pullen, 43 N. J. Eq. 13G. The State cannot contradict the answers of the accused to irrele- vant and immaterial questions asked him on cross-examination. Bullock v. State, 65 N. J. L. 557; State v. Sprague, 64 N. J. L. 419. When a witness is asked on cross-examination for purposes of impeaching him whether he had not been guilty of larceny, the an- swer cannot be contradicted. Pullen v. Pullen, 43 N. J. Eq. 136. Maryland. Authority. — Sloan v. Edwards, 61 Md. 89. If the prosecuting witness in a criminal case denies that he offered money to a witness for the defense to induce him to stay away, he may be contradicted. Richardson v. State, 90 Md. 109. Pennsylvania. Authorities. — Elliott v. Boyles, 31 Pa. 65; Hester v. Com., 85 Pa. 139. Answers on cross-examination may be contradicted if they were in regard to matters brought out on direct examination. Blauveli v. Railroad Co., 206 Pa. 141. One who cross-examines a witness as to collateral matters is bound by his answers. Griffith v. Eshehnan, 4 Watts, 51; Wright v. Cumpsty, 41 Pa. 102. If a witness denies on cross-examination that he had previously committed perjury, his answer cannot be contradicted. Elliott v. Boyles, 31 Pa. 65. Article 131.* statements inconsistent with present testimony may be proved. Every witness under cross-examination in any proceed- ing, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the proceeding and inconsistent with his present testimony, the * See Note XLVII. Chap. XVI.] THE LAW OF EVIDENCE. 613 circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he has made such a state- ment, proof may be given that he did in fact make it. The same course may be taken with a witness upon his examination in chief, if the judge is of opinion that he is " adverse " [i.e. hostile] to the party by whom he wa3 called and permits the question. It seems that the discretion of the judge cannot be reviewed afterwards. 30 AMERICAN NOTE. General. Authorities. — 16 Encyclopaedia of Pleading and Practice, p. 279 et seq.; 1 Greenleaf on Evidence (15th ed.), sec. 462; Sanderson v. Nashua, 44 N. H. 492; Martin v. Toiole, 59 N. H. 31. First paragraph of text. Ayers v. Watson, 132 U. S. 394; Atchi- son, etc., R. Co. v. Feehan, 149 111. 202; Rice v. Rice, 104 Mich. 371; Welch v. Abbott, 72 Wis. 512; Birch v. Hall, 99 Cal. 299; Brown T. State, 72 Md. 468 ; State v. Jones, 44 La. Ann. 960 ; Spohn v. Mo. Pac. R. Co., 122 Mo. 1 ; Haley v. State, 63 Ala. 83; Stratford v. Fairfield, 3 Conn. 591 ; Burns v. Fredericks, 37 Conn. 92 ; Beardsley v. Wild- man, 41 Conn. 516; Harrison's Appeal, 48 Conn. 206. If the statement is of some irrelevant matter, the answer of the witness is binding. Com. v. Mooney, 110 Mass. 99, 101. Where a party has offered an account-book in e.idence, evidence that upon the trial of another case he had testified that he had no such book is admissible. Sayles v. Fitz Oerald, 72 Conn. 391. The contradictory statements may be proved independently, with- out first asking the witness if he made them. Ware v. Ware, 8 Greenl. (Me.) 42, 53; Wilkin* v. Bobbershall, 32 Me. 184; Cook v. Brown, 34 N. H. 460; Robinson v. Hutchinson, 31 Vt. 443, 449; Holbrook v. Holbrook, 30 Vt. 433; Tucker v. Welsh, 17 Mass. 160, 166, 9 Am. Dec. 137; Day v. Stickney, 14 Allen (Mass.), 255, 260; 30 Rice v. Howard, 1886, 16 Q. B. D. 681. 614 A DIGEST OF [Part III. Gould v. Norfolk Lead Co., 9 Cush. (Mass.), 338. Compare Cogsivell v. Newbury port Sav. Inst., 165 Mass. 524; Com. v. Smith, 163 Mass. 411; Hedge v. Clapp, 22 Conn. 262, 265, 9 Am. Dee. 137; Tomlinson v. Derby, 43 Conn. 562; Butler v. Cornwall Iron Co., 22 Conn. 357. But see Rothroek v. Gallaher, 91 Pa. 108. Some courts hold that a party cannot impeach his own witness, by proving inconsistent statements. Cox v. Eayres, 55 Vt. 24. But see Stats, of Vermont, sec. 1247; Hildreth v. Aldrich, 15 R. I. 163; Breiver v. Porch, 17 N. J. L. 377; State v. Burks, 132 Mo. 363; W/ieeter v. Thomas, 67 Conn. 577 ; Dixon v. State, 86 Ga. 754 ; Adam* v. Wheeler, 97 Mass. 67 ; Stearns v. Merchants' Bank, 53 Pa. St. 490 ; FaZZ v. Chicago, etc., R. Co., 84 la. 311; Tarsney v. Turney, 48 Fed. Rep. 818; Rindskopf v. Kuder, 145 111. 607; Chester v. Wilhelm, 111 N. C. 314. But see Brubaker v. Taylor, 76 Pa. St. 83; C'oa? v. Eayres, 55 Vt. 24, 45 Am. Rep. 583. This does not apply to a witness whom one is obliged to call (e. g., attesting witnesses). Thornton v. Thornton, 39 Vt. 122; Shorey v. Hussey, 32 Me. 579; Whitman v. Morey, 63 N. H. 448; State v. S7acfc, 69 Vt. 486; Hildreth v. Aldrich, 15 R. I. 163. See PeopZe v. Cose, 105 Mich. 92. Nor to an adverse witness. Hurlburt v. Bellows, 50 N. H. 102; Putnam v. U. S., 162 U. S. 697-707; McNemey v. .Read- ing, 150 Pa. St. 611; White v. State, 87 Ala. 24; Selover v. Bryant, 54 Minn. 434; Smith v. Briscoe, 65 Md. 561; 2Va£. Syrup Co. v. Carlson, 42 111. App. 178. Evidence of statements contradictory to those made on the stand may be introduced. Ward v. Sire, 65 N. Y. Supp. 101, 52 App. Div. 443; Grossman v. Lurman, 68 N. Y. Supp. 311, 57 App. Div. 393. The evidence of the plaintiff may be impeached by her cross-exam-? ination upon a former trial, which is evidence for that purpose, al- though her attention was not called to it. Fisher v. Monroe, 51 N. Y. St. R. 585, reversing 1 Misc. Rep. 14; reargument denied in 3 Misc. Rep. 033. See 10 Daly, 461. The evidence stated in a case made on a former trial is not ad- missible to impeach the testimony of a witness. Neilson v. Colum- bian Insurance Co., 1 Johns. 301. Corroborating a witness. — A witness cannot be permitted to cor- roborate the testimony of another witness, by stating that she heard the latter say, in a prior conversation, what he had testified to at the trial. Eggleston v. Columbia Turnpike Road, 82 N. Y. 278, re- Chap. XVI.] THE LAW OF EVIDENCE. 615 versing 18 Hun, 146, on a point not considered below. And see Peo- ple v. Cox, 21 Hun, 47, 83 N. Y. 610. Mode of proof. — Pennsylvania Co. v. Trainer, 5 Circ. Dec. 519, 12 Ohio Circ. Ct. 66; Mt. Adams, etc., Ry. Co. v. Isaacs, 10 Circ. Dec. 49, 19 Ohio Circ. Ct. 177; Monroeville v. Weihl, 6 Circ. Dec. 188, 13 Ohio Circ. Ct. 689; Spaulding v. Toledo Consol. St. Ry. Co., 10 Circ. Dec. 660, 20 Ohio Circ. Ct. 99. Foundation for the evidence. — A foundation must be laid for im- peaching testimony. Redmon v. Holley, 10 Brad. 202. Compare Teal v. Heravey, 12 Brad. 32; Mills v. Buflln, 12 Brad. 111. Before statements out of court can be admitted the attention of the witness must be called to them. Seckel v. York Nat. Bank, 57 111. App. 579; T. P. Ace. Assn. v. McKinney, 57 111. App. 147; Regnier v. Calot, 2 Gilm. 34; Ootloff v. Henry, 14 111. 384; G. & C. U. R. R. Co. v. Fay, 16 111. 558; Root y. Wood, 34 111. 283; Miner v. Phillips, 42 111. 123; Winslow v. Newlan, 45 111. 145; Craig v. Rorer, 63 111. 325; N. W. Ry. Co. v. Hack, 66 111. 238; McCoy v. People, 71 111. Ill; Bock v. Weigant, 5 Brad. 643; Presley v. Powers, 82 111. 125; Richardson v. Kelly, 85 111. 491. Where a witness denies that he has made contrary statements out of court, the fact of making them may be proved. Chicago W. D. Ry. Co. v. Ingraham, 131 111. 659, 668; Consolidated Coal Co. v. Seniger, 79 111. App. 456. If a witness neither admits or denies an inconsistent statement, such statement may then be proved. Ray v. Bell, 24 111. 444; Wood v. Shaw, 48 111. 273. Impeaching one's own witness. — A party cannot impeach his own witness, by proving inconsistent statements. Rindskopf v. Kuder, 145 111. 607; Tobin v. C. C. Ry. Co., 17 111. App. 82, 84; Mitchell v. Sawyer, 115 111. 650, 653; Pennsylvania Co. v. Cohen, 66 111. App. 318; United States Life Ins. Co. v. Kielgast, 2G 111. App. 567. A mere nominal party may impeach his co-party. Carey v. Hen- derson, 61 111. 378. A party may contradict his own witness by other witnesses. Wal- ler v. Carter, 8 Brad. 511; Rockwood v. Poundstone, 38 111. 199. As to an adverse witness, see National Syrup Co. v. Carlson, 42 111. App. 178. Sustaining witness. — The testimony of a witness cannot be cor- roborated by proof of declarations made out of court. Stolp v. Blair, 68 111. 541. 616 A DIGEST OF [Part III. A witness's declarations may be given to corroborate his testimony when his credibility is attacked. Gates v. People, 14 111. 434. Mode of proving statements. — A report of a stenographer cannot be used to impeach a witness at a subsequent trial. Stayner v. Joyce, 120 Ind. 99. The testimony as set out in a bill of exceptions cannot be used to establish contrary statements. Pennsylvania Co. v. Marion, 123 Ind. 415 j Glenn v. State, 46 Ind. 368; Starrett v. Burkhalter, 86 Ind. 439; Stayner v. Joyce, 120 Ind. 99; Terry v. Shivley, 93 Ind. 143. Contrary statements given in a deposition in another case may be proved. McAfee v. Montgomery, 21 Ind. App. 196. Testimony in writing before a coroner cannot be contradicted by parol evidence. Robinson v. State, 87 Ind. 292. Testimony before a coroner, reduced to writing, may be used to contradict a witness. Woods v. State, 63 Ind. 353. Explaining statements. — Where it is sought to impeach a witness by proof of contrary statements, the witness may be called to give his account. Railway Co. v. Harris, 49 Ind. 119. As to immaterial matters. — A witness cannot be impeached by proving contradictory statements with reference to immaterial or collateral matters. Driscoll v. People, 47 Mich. 413; Dalman v. Koning, 54 Mich. 320; Dunn v. Dunn, 11 Mich. 284; Fisher v. Hood, 14 Mich. 189; Hamilton v. People, 46 Mich. 186; Leavitt v. Stansell, 44 Mich. 424. Immaterial matters cannot be brought into the case for the pur- pose of impeachment. McDonald v. McDonald, 67 Mich. 122. A witness cannot be asked as to irrelevant matters on cross-ex- amination, for the purpose of contradicting him. People v. Hill- house, 80 Mich. 580. New Jersey. Previous inconsistent statments may be proved. Crane v. Sayre t 1 Hal. Ill; Brewer v. Porch, 2 Harr. 379; Schenck v. Griffen, 38 N. J. L. 462, 472. Statements of an alleged paramour are not admissible against the defendant, but are admissible to contradict his testimony at the trial. Graham v. Graham, 50 N. J. Eq. 701. Cross-examination allowed as to testimony given on a former trial of the case. Miller v. Rambo, 66 N. J. L. 191. Laying foundation. — Whore a witness is also a party to the suit, no foundation need be laid before introducing evidence of inconsist- Chap. XVI.] THE LAW OF EVIDENCE. 617 ent statements. They are affirmative evidence as admissions, not merely impeaching evidence. AlcBlain v. Edgar, 65 N. J. L. 634. Inconsistent statements provable after laying the foundation on cross-examination. Fries v. Brugler, 7 Hal. 70. Impeaching one's own witness. — A party cannot prove inconsistent statements to impeach his own witness. Brewer v. Porch, 17 N. J. L. 377. The State may contradict statements made by a defendant in a confession. State v. Abbatto, 64 N. J. L. 658. Though a party may not impeach the character of his own witness for truth and veracity, yet when she denies that a certain signature is hers he may contradict her as to that particular fact. Ingersoll v. English, 66 N. J. L. 466. Maryland. Statute. — Inconsistent statements of the adverse party may be proved. P. G. L. 1888, art. 35, sec. 4. Prior contradictory statements may be proved. Balto., etc., Ry. Co. v. Knee, 83 Md. 77; Oarlitz v. State, 71 Md. 293. When a witness has said he did not have a certain conversation with another, it may be shown that he did have. Turnbull v. Mad- dox, 68 Md. 579; Railroad Co. v. Andrews, 39 Md. 329. As to a matter of fact it cannot be shown that the witness has expressed a contrary opinion. Sloan v. Edwards, Gl Md. 89. Inconsistent statements are to be used only as discrediting a wit- ness, not as primary evidence of the facts stated. Stirling v. Stir- ling, 64 Md. 138. Interest and crime. — A witness may be shown to have an interest or to have been convicted of crime. P. G. L. 1888, art. 35, sec. 5. Foundation must be laid. — Paterson v. State, 83 Md. 194; Brown v. State, 72 Md. 468; Kriete v. Myer, 61 Md. 558; Ins. Co. v. Traub, 83 Md. 524. The foundation required consists in giving the witness a fair chance to recollect by referring him to the dates, names, and the surrounding circumstances of his supposed former contradictory statement. Whiteford v. Burckmyer, 1 Gill, 127; Smith v. Cooke, 31 Md. 174; Higgins v. Carlton. 28 Md. 115: Matthews v. Dare, 20 Md. 2.48; Waters v. Waters, 11 G. & J. 37; Bank v. Wavig. Co., 11 G. & J. 28. 618 A DIGEST OF [Pabt III. The previous admissions of a party to the suit are admissible against him without first questioning him concerning them. Kirk v. Garrett, 84 Md. 383. Irrelevant matters. — A witness may not be cross-examined as to irrelevant matters merely for the purpose of contradicting him later. Sloan v. Edwards, 61 Md. 89; Kriete v. Myer, 61 Md. 558; White- ford v. Burckmeyer, 1 Gill, 127. See Mason v. Poulson, 43 Md. 161 ; Goodhand v. Benton, 6 G. & J. 481. If irrelevant cross-examination has been allowed, that does not authorize evidence to contradict the witness as to such irrelevant matters. Pass. Ry. Co. v. Tanner, 90 Mel. 315. Contradicting one's own witness. — When a witness has made a statement to a party or his attorney wholly contradictory to his sworn testimony, he may be asked concerning such former state- ment, and if he denies making it. it may be proved. The statement must have been made with reference to the case in question, and he must have been called on the faith of such statement. Smith v. Briscoe, 65 Md. 561. One cannot impeach his own witness by introducing a previous letter written by such witness. Sewell v. Gardner, 48 Md. 178. A party may prove the facts as they are, though one of his wit- nesses has stated them otherwise and he cannot impeach the wit- ness directly. Sewell v. Gardner, 48 Md. 178 ; Wolfe v. Hunter, 1 Gill, 84. A party may call a witness to testify in direct contradiction of a former witness called by him. Bank v. Steam Nav. Co., 11 G. & J. 28. Pennsylvania. Authorities. — A witness may be discredited by showing that he testified differently at a former trial (Travis v. Brown, 43 Pa. 9) ; or by reading a former deposition in the same case (Bull v. Toicson, 4 W. & S. 557; Parker v. Donaldson, 6 W. & S. 132) ; or by proving other previous inconsistent statements (Craig v. Craig, 5 Rawle, 91; Wertz v. May, 21 Pa. 274; Schlater v. Winpenny, 75 Pa. 321). If the accused on trial for murder deny on cross-examination that he made threats, he may be contradicted. Gaines v. Com., 50 Pa. 319. If a witness says he does not remember having made a certain statement, it may be shown that he did make it. Gregg Twp. v. Jamison, 55 Pa. 468. Chap. XVI.] THE LAW OF EVIDENCE. 619 Manner of questioning the impeaching witness. Insurance Co. v. Bair, 87 Pa. 124. Party's own witness. — Inconsistent statements are not admissible to impeach one's own witness. Steams v. Bank, 53 Pa. 4!)U. But a party may prove the facts as they are by other witnesses. Rail- road Co. v. Fortney, 90 Pa. 323. Hostile witnesses. — An unwilling or hostile witness may be asked by the party calling him whether he has not testified otherwise on a former occasion. Bank v. Davis, W. & S. 285. The evidence of one's own witness may be contradicted, if he comes under the class of necessary, unwilling, or adverse witnesses. Gantt v. Cox, 199 Pa. 208. The foundation necessary to show that one's own witness is hos- tile. Fisher v. Hart, 149 Pa. 232. Rule when adverse party is called as for cross-examination. Pep- per & Lewis' Digest of Laws, " Witnesses," sec. 21. Surprise. — A party surprised by the testimony of his witness may call to his recollection conversations wherein he made contrary statements and thus give him a chance to explain. McXcrney v. Reading, 150 Pa. 611. Laying foundation. — Previous inconsistent statements cannot be proved, unless the witness be first asked concerning them and given a chance to explain them, thus laying the foundation for contra- diction. McAteer v. MeMullen, 2 Pa. 32; Wright, v. Cumpsty, 41 Pa. 102; Coates v. Chapman, 195 Pa. 109. But the trial court has discretion to allow proof of such inconsistent statements with- out laying a foundation. Sharp v. Emmet, 5 Whart. 283 ; Kay v. Fredrigal, 3 Pa. 221; Walden v. Finch, 70 Pa. 460; Cronkritc v. Trexler, 187 Pa. 100; Rothrock v. Gallagher, 91 Pa. 108. The court may allow the witness to be recalled to explain the inconsistency when no foundation was laid on cross-examination. Rothrock v. Gallagher, 91 Pa. 108. When one's opponent is called as a witness, his testimony may be contradicted by proving inconsistent statements without giving him any chance to explain, for they would be admissible as admis- sions in any event. Brubaker v. Taylor, 76 Pa. 83; Kreiter v. Bam- berger, 82 Pa. 59. Testimony in a former proceeding. — Pepper & Lewis' Digest of Laws, " Criminal Procedure," sec. 84 ; " Witnesses," sec. 20. 620 A DIGEST OF [Part III. Article 132. cross-examination as to previous statements in WRITING. A witness under cross-examination [or a witness whom the judge under the provisions of Article 131 has permitted to be examined by the party who called him as to previous statements inconsistent with his present testimony] may be questioned as to previous statements made by him in writing, or reduced into writing, relative to the subject- matter of the indictment or proceeding, without such writ- ing being shown to him [or being proved in the first in- stance] ; but if it is intended to contradict him by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of contradicting him. The judge may, at any time during the trial, require the docu- ment to be produced for his inspection, and may thereupon make such use of it for the purposes of the trial as he thinks fit. 81 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 463-465 v 1 Wharton on Evidence, sec. 68 ; 10 Encyclopaedia of Pleading and Practice, p. 291, et seq. See Whitman v. Morey, 63 N. H. 448. Modifying rule of text. Hosmer v. Groat, 143 Mass. 16; Chicago R. Co. v. McLoughlin, 146 111. 353; Lightfoot v. People, 16 Mich. 507; State v. Stein, 79 Mo. 330; Glenn v. Gleason, 61 la. 28; Floyd v. 31 28 Vict. c. 18, s. 5, re-enacting 17 & 18 Vict. c. 125, s. 24, now- repealed. I think the words between brackets represent the meaning of the sections, but in terms they apply only to witnesses under cross-examination — " Witness mav be cross-examined," &c. Chap. XVI.] THE LAW OF EVIDENCE. 621 State, 82 Ala. 16; State v. Cellegari, 41 La. Ann. 578; Chicago, etc., R. Co. v. Artery, 137 U. S. 507; Morford v. Peck, 46 Conn. 380. In an action for wrongful discharge from employment, where the defendant testified to the terms of the contract it wat proper, on cross-examination, to call his attention to allegations in his verified answer in conflict therewith ; and this though the answer was verified by advice of counsel. Hare v. Mahony, 36 N. Y. St. R. 653. Contradictory statement in writing. — The fact that a witness has made written statements inconsistent with his evidence may be proved. Boeker v. Hess, 34 111. App. 332, 336; N. L. Packet Co. v. Bininger, 70 111. 571. The contradictory statement in writing (e. g., a letter), cannot be introduced without asking the witness if he wrote it. Transportation Co. v. O'Neill, 41 111. App. 425; Seckel v. York Nat. Bank, 57 111. App. 579. A letter is admissible to impeach a witness. Dick v. Marble, 155 111. 137. A witness may be impeached by proof of an affidavit containing contradictory statements. Von Olahn v. Von Glahn, 46 111. 134; Stone v. Cook, 79 111. 424. A. witness may be impeached by the testimony in a deposition. Bartalott v. International Bank, 119 111. 268. When a witness has admitted that he made written statements contradictory to his evidence, such statements are not admissible. Swift v. Madden, 165 111. 41. A witness may be asked as to former testimony in another case for the purpose of refreshing his recollection. Battishill v. Humphreys, 64 Mich. 494. As to prior inconsistent statements in writing, see Monyhan v. Detroit & S. Plank Road Co., 8 Det. L. N. 1104, 89 N. W. 372. New Jersey. A document offered to contradict testimony in regard to it must be identified as the one referred to by the witness. West v. State. 2 Zab. 212. Maryland. As to the use of a witness' letters for contradicting his testi- mony, see de Sobry v. de Laistre, 2 H. & J. 191. Pennsylvania. Letters. — Morgan v. Browne, 71 Pa. 130. 622 A DIGEST OF [Part III. Article 133. impeaching credit of witness. The credit of any witness may be impeached by the adverse party, by the evidence of persons who swear that they, from their knowledge of the witness, believe him to be unworthy of credit upon his oath. Such persons may not upon their examination in chief, give reasons for their be- lief, but they may be asked their reasons in cross-examina- tion, and their answers cannot be contradicted. 32 No such evidence may be given by the party by whom any witness is called, 33 but, when such evidence is given by the adverse party, the party who called the witness may give evidence in reply to show that the witness is worthy of credit. 34 AMERICAN NOTE. General. Authorities. — 10 Encyclopaedia of Pleading and Practice, p. 299 et seq.; 1 Wharton on Evidence, sees. 397,. 567, 56S; 1 Greenleaf on Evidence (15th ed.), sec. 461. One who knows nothing of the character of a witness, except what he heard on two occasions, cannot testify as an impeaching witness. Com. v. Rogers, 136 Mass. 158. As to qualification, generally, see Bates v. Barber, 4 Cush. (Mass.) 107; Wetherbee v. JV orris, 103 Mass. 565; Rundell v. La Fleur, 6 Allen (Mass.), 480. An impeaching witness may be cross-examined as to the source of his information. State v. Howard, 9 N. H. 485; Hepworth v. Ilcn- shall, 153 Pa. St. 592; Bobbins v. Spencer, 121 Ind. 594. See Holly- wood v. Reed, 57 Mich. 234; Bates v. Barber, 4 Cush. (Mass.) 107. 32 2 Ph. Ev. 503-4 ; Taylor, 1470, 1470a. See R. v. Brown, 1867, 1 C. C. R. 70. 33 28 Vict. c. 18, s. 3. 34 2 Ph. Ev. 504. Chap. XVI.] THE LAW OF EVIDENCE. 623 An impeaching witness may not be asked reasons on the direct, but may on the cross-examination. Weeks v. Hull, 19 Conn. 376, 379, 50 Am. Dec. 249. An impeaching witness may be asked on cross-examination how he has received his information as to the general character of the wit- ness impeached, and what persons he has heard speak against it. Weeks v. Hull, 19 Conn. 379. It is well settled that a new trial should not be granted for newly- discovered evidence that would impeach the general reputation of a witness for truth and veracity. Evidence that a witness since the trial had told a different story from that which was told in court, is essentially of an impeaching character. Husted v. Mead, 58 Conn. 61, 62. The character of a witness for truth is the only thing that can be attacked, in an attempt to impeach him. State v. Randolph, 24 Conn. 366. The court may limit, at its discretion, the number of impeaching witnesses; though, should the limit be fixed manifestly too low, it might be ground for a new trial. Six on a side will ordinarily be sufficient. Bunnell v. Butler, 23 Conn. 69; Hollywood r. Reed, 57 Mich. 234. Impeaching and contradicting party's own witness. — One may con- tradict his own witness. Seavy v. Dearborn, 19 N. H. 351 ; Swamscot Mach. Co. v. Walker, 22 N. H. 457; Wheeler v. Thomas, 67 Conn. 577 ; Olmstead v. Winsted Bank, 32 Conn. 278, 85 Am. Dec. 260. While a party may disprove a fact testified to by his witness, he cannot impeach him under the rule of this article. Hill v. West End St. R. R. Co., 158 Mass. 458; Brolley v. Lapham, 13 Gray (Mass.), 294; Com. v. Welsh, 4 Gray (Mass.), 535; Com. v. Starkiccather, 10 Cush. (Mass.) 59: Whitaker v. Salisbury, 15 Pick. (Mass.) 534; Whitney v. Eastern R. R. Co., 9 Allen (Mass.), 364; Broicn v. Bel- lows, 4 Pick. (Mass.) 179; Wheeler v. Thomas, 67 Conn. 577. This rule applies also to a witness which he is obliged to call, as an attesting witness. Brown v. Bellows, 4 Pick. (Mass.) 179, 194; Whitaker v. Salisbury, 15 Pick. (Mass.) 534. Supporting witness. — The party whose witness is attacked may give evidence in support of his reputation. Com. v. Ingraham, 7 Gray (Mass.), 46, 48; First Nat. Bank v. Wolff, 79 Cal. 69; Magee v. People, 139 111. 138; Sloan v. Edwards, 61 Md. 89. 624 A DIGEST OF [Paet III. As a general rule, a witness cannot be supported by evidence of his general character for truth, excepting after a general impeach- ment of it. Merriam v. H. & N. H. R. R. Co., 20 Conn. 364; Rogers v. Moore, 10 Conn. 16, 17. Reputation only provable. — General reputation as to truthfulness may be shown. State v. Howard, 9 N. H. 485 ; Titus v. Ash, 24 N. H. 319; Bd. of Commerce v. O'Connor, 137 Ind. 622; Isler v. Dewey, 71 N. C. 14 ; Walker v. Phenix Ins. Co., 62 Mo. App. 209 ; Hodgkins v. State, 89 Ga. 761, 765. Contra, Webb v. State, 29 O. St. 351; Wertz v. May, 21 Pa. St. 274; State v. Archer, 73 la. 320; People v. Olm- stead, 30 Mich. 431. Reputation eighteen months before may be shown. Com. v. Bil- lings, 97 Mass. 405. Particular falsehoods. — Particular instances of falsehood cannot be shown. Com. v. Rogers, 136 Mass. 158, 159; Quinsigamond Bank v. Hobbs, 11 Gray (Mass.), 250; Com. v. Lawler, 12 Allen (Mass.), 585; Com. v. Kennon, 130 Mass. 39; Drew v. State, 124 Ind. 9; State v. Rogers, 108 Mo. 202; People v. Ryan, 108 Cal. 581; Robbins v. Spencer, 121 Ind. 594; Laclede Bank v. Keeler, 109 111. 385; State v. Spurling, 118 N. C. 1250. Sustaining witnesses. — See 10 Encyclopaedia of Pleading and Practice, 324 et seq., where there is a full citation of authorities. The jury is at liberty to disbelieve the evidence of a party defend- ant or of his managing agent, although uncontradicted and although the witness is not impeached. Brumfield v. Hill, 28 N. Y. St. R. 362, 8 N. Y. Supp. 143. The impeaching witness should first be inquired of as to his knowl- edge. Carlson v. Wintersen, 147 N. Y. 652. Having testified that the witness is of bad reputation as to truth- fulness, the impeaching witness may be asked if he would believe him under oath. People v. Mather, 4 Wend. 229 ; People v. Rector, 19 Wend. 569; People v. Davis, 21 Wend. 309; Adams v. Greenwich Ins. Co., 70 N. Y. 166. The impeaching witness may be cross-examined as to the sources of his information. Fulton Bank v. Benedict, 1 Hall, 480; People v. Mather, 4 Wend. 232 ; Tower v. Winters, 7 Cow. 263. Form of question. — A* to the proper form of question for impeach- ing a witness, see Schattgen v. Holmback, 52 111. App. 54. A proper form of question is as to " whether he is acquainted with the general reputation of the party sought to be impeached among Chap. XVI.] THE LAW OF EVIDENCE. 625 his neighbors and associates for truth and veracity." Crabtree v. Hagenbaugh, 25 111. 233; Foulk v. Eckert, 61 111. 318; Dimmick v. Downs, 82 111. 570. Limiting number of witnesses. — A general rule limiting the num- ber of impeaching witnesses is unreasonable. Lamed v. Piatt, 26 111. App. 278. Attacking impeaching witness. — The character of an impeaching witness cannot generally be attacked. Rector v. Rector, 3 Gilm. 105; Dimmick v. Downs, 82 111. 570. Objections to testimony. — Objections to impeaching testimony must be specific. Smith v. M'Cartney, 33 111. App. 178. Reputation only provable. — General reputation as to truthfulness may be shown. Board of Commerce v. O'Connor, 137 Ind. 622. Particular falsehoods. — Particular instances of falsehood cannot be shown. Drew v. State, 124 Ind. 9; Robbins v. Spencer, 121 Ind. 594. Cross-examination of impeaching witnesses. — As to cross-examina- tion of impeaching witness, see Oliver v. Pate, 43 Ind. 132; Hutts v. Hutts, 62 Ind. 240. An impeaching witness may be cross-examined as to the source of his information. Robbins v. Spencer, 121 Ind. 594. New Jersey. Reputation for truth. — Evidence of a witness' reputation for truthfulness may be given as it exists at the time such witness testifies, though the witness is also the defendant in a criminal prosecution. State v. Sprague, 64 N. J. L. 419. An impeaching witness who went to the neighborhood for the pur- pose of learning another's reputation is incompetent. Raid v. Reid, 17 N. J. Eq. 101. Proof of specific instances not permissible. Atwood v. Intpson, 20 N. J. Eq. 151. General reputation in the neighborhood for truth and veracity is admissible; but without giving such reputation a witness may not 40 626 A DIGEST OF [Past III. say he would not believe the person under oath. Schenck v. Griffcn, 38 N. J. L. 462; King v. Ruckman, 20 X. J. Eq. 317; Atwood v. Impson, 20 N. J. Eq. 151. Not proper to admit evidence that witness is quarrelsome. State v. Hairs, Coxe, 453. Evidence of witness' reputation for truthfulness at a place where he lived eighteen years before properly excluded. Shuster v. Stale, 62 K J. L. 521. The impeaching witness may be asked whether he would believe the other witness on oath. State v. Polhemus, 65 N. J. L. 387 ; King v. Ruckman, 20 N. J. Eq. 316. Impeaching one's own witness. — A party may discredit a subscrib- ing witness whom the law requires him to call. Beake v. Birdsall, Coxe, 15. Impeaching the character of one's own witness is not permitted,, but other evidence may contradict him as to a fact. Skellinger v. Howell, 3 Hal. 310. One cannot contradict his own witness by proving previous in- consistent declarations made by such witness. Brewer v. Porch, 2. Harr. 377. A party may show that what his own witness says is untrue. Thorp v. Leibrecht, 56 N. J. Eq. 499. Maryland. Authorities. — It may be shown that a witness offered for a sum of money to leave the State and not to testify. Chelton v. State, 45 Md. 564. The impeaching witness may be cross-examined as to his mean* of knowledge. Sloan v. Edivards, 61 Md. 89. The veracity of a witness cannot be impeached by showing that he often got drunk and accused people of stealing from him. Hoff- man v. State, 93 Md. 388. The credibility of a witness cannot be impeached by proof that he had been indicted for false pretenses. Bonaparte v. Thayer, 95 Md. 548. Impeaching witnesses may themselves be impeached in like man- ner as other witnesses. Wyeth v. Walzl, 43 Md. 426. Chap. XVI.] THE LAW OF EVIDENCE. 62? A witness who says he knows another's reputation for truth an.T veracity among his business associates but not among his genera? associates is not competent. Bonaparte v. Thayer, 95 Md. 548. Credibility on oath. — The impeaching witness may say whether he would believe the impeached witness on oath. Knight v. House,. 29 Md. 194. The impeaching witness must be asked whether he knows one's general reputation in the neighborhood and then what it is ; he may then be asked whether he would believe such person on oath Sloan v. Edwards, 61 Md. 89. Impeaching one's own witness. — One may not impeach the credit of his own witness. Queen v. State, 5 H. & J. 232; Hepburn's Case. 3 Bland, 95; B. & 0. It. Co. v. Woodward, 41 Md. 268. Sustaining witness. — An impeached witness may be sustained by evidence of his good reputation. Vernon v. ^Tucker, 30 Md. 450. When a witness is impeached he may be sustained by proof that his general reputation is good by witnesses who are acquainted with it; they may say that they would believe the person on oath. Sloan v. Edioards, 61 Md. 89. When a witness has been impeached by showing that he has cor rupt motives or fabricated evidence, he may be sustained by proving former statements that he made before such motives could exist. Baltimore, etc., Ity. Co. v. Knee, 83 Md. 77. See also Railway Ca. v. Cooney, 87 Md. 261. Pennsylvania. Authorities. — Bogle v. Kreitzer, 46 Pa. 465; Kimmel v. Kimmel, 3 S. & R. 336. A discrediting witness should be asked as to his acquaintance with the witness to be impeached, as to his knowledge of such witness' general reputation for truth and veracity in the neighbor- hood where he lives, as to what that reputation is, and then he may be asked whether he would believe such witness on oath. Bogle v. Kreitzer, 46 Pa. 465. A witness may be impeached by showing that he lied as to some things in his testimony. Stahle V. Spohn, 8 S. & R. 317: Fehley v. Barr, 66 Pa. 196. 628 A DIGEST OF [Pabt III. Cross-examination of the impeaching witness. Hepworth v. Henshall, 153 Pa. 592. Time and place of reputation. — Evidence as to the credibility of a witness four years before the trial is not admissible. Miller v. Miller, 187 Pa. 572. The reputation of a witness for veracity that is material is his reputation at the time he testifies, not his reputation at remote times. Smith v. Hine, 179 Pa. 203. Testimony as to reputation for veracity need not be confined to the immediate neighborhood. Chess v. Chess, 1 P. & W. 32. Belief on oath. — ■ One cannot state that he would believe another on oath until he says he knows such other's good general reputa- tion for truth and veracity. Lyman v. Philadelphia, 56 Pa. 488. General reputation not specific instances. — The impeaching testi- mony must be as to general character, not as to particular acts or as to what specific individuals say. WiJce v. Light ner, 11 S. & E. 198; Ramsay v. Johnson, 3 P. & W. 293. Character for care, skill, or truth cannot be established by proof of specific acts. Frontier v. Railroad Co., 38 Pa. 104. Character for drunkenness is not admissible. Brindle v. Mc- Ilvaine, 10 S. & E. 282. Xor is character for chastity. Gilchrist V. McKee, 4 Watts, 380. Party's own witness. — One may not impeach the credibility of his own witness; but he may put in evidence contradicting him. Stearns v. Bank, 53 Pa. 490: Ayres v. Wattson, 57 Pa. 360; Stock- ton v. Demuth, 7 Watts, 39. Necessary and hostile witnesses. — A party may discredit his own witness when he is hostile and the party is compelled to call him tc account for the nonintroduction of a contract in the hands of the adverse party. Morris v. Guffey, 188 Pa. 534. When a party is obliged to call an attesting witness tc a deed, he may impeach the credibility of such witness. Hart v. Burns, 4 dark, 337. Sustaining witnesses. — A witness may be sustained by evidence of "his good reputation in a county where he formerly resided. Morss v. Palmer, 15 Pa. 51. Evidence of good character of a witness is not admissible unless impeaching testimony has been given. Braddee v. Broionfield, 9 Watts, 124; Wertz v. May, 21 Pa. 274. 0HAP. XVI.] TEE LAW OF EVIDENCE. 021) Statements made by a witness at a former time are not admis- sible to sustain him when impeached. Craig v. Craig, 3 Rawle, 91: Com. v. Carey, 2 Brewst. 404; Crooks v. Bunn, 136 Pa. 368. Ex- cept to show that the testimony was not given because of some recent motive. Clever v. Hilberry, 116 Pa. 431. If a witness is impeached he may be sustained by showing that he testified the same in a former trial. Foster v. Shaw, 7 S. & R. 156; Henderson v. Jones, 10 S. & R. 322; Good v. Good, 7 Watts, 195; Bricker v. Lightner, 40 Pa. 199. Article 134. offences against women. When a man is prosecuted for rape or an attempt to ravish, it may be shown that the woman against whom the offence was committed was of a generally immoral charac- ter, although she is not cross-examined on the subject. 35 The woman may in such a case be asked whether she has had connection with other men, but her answer cannot be contradicted. 30 She may also be asked whether she has had connection on other occasions with the prisoner, and if she denies it she may be contradicted. 37 35/2. v . Clarke, 1817, 2 Star. 241. 3« R. v. Holmes, 1871, 1 C. C. R. 334. 37/J. v. Martin, 1834, 6 C. & P. 562, and remarks in R. v. Holmes, p. 337, per Kelly, C.B. See also R. v. Cockroft, 1870, 11 Cox 410; 41 L. J., M. C, 12, and R. v. Riley, 1887, 18 Q. B. D. 481. 630 A DIGEST OF [Part III. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on evidence (15th ed.), sec. 458, n.; vol. 3, sec. 214. The bad character of woman for chastity may be shown. Com. v. McDonald, 110 Mass. 405; O'Blenis v. State, 47 N. J. L. 279; Bed- good v. State, 115 Ind. 275. Particular acts of unchastity with others cannot be proved. Gore v. Curtes, 81 Me. 403; Com. v. Harris, 131 Mass. 336; Com. v. Regan, 105 Mass. 593; People v. McLean, 71 Mich. 307; Shartzer v. State, €3 Md. 149; Rice v. State, 35 Fla. 236; Richie v. State, 58 Ind. 355. Contra, State v. Hollenbeck, 67 Vt. 34; Hoffman v. Eemerer, 44 Pa. St. 453; Doyle v. Jessup, 29 111. 460; £mi*/i v. Tart/cm, 69 Ind. 445, People v. Benson, 6 Cal. 221 ; State v. Forstner, 43 N. H. 89; State v. Knapp, 45 N. H. 148. When woman is under age of legal consent, such evidence in rape cases has been held incompetent. People v. Johnson, 106 Cal. 289; People v. Abbott, 97 Mich. 484; State v. Duffey, 128 Mo. 549. As to indecent assault, see Mitchell v. Work, 13 R. I. G4o : Watrey v. Ferber, 18 Wis. 525. In rape cases the woman's bad character for chastity may be shown. Woods v. People, 55 N. Y. 515; Conlcey v. People, 1 Abb. Dec. 418. And so in actions for indecent assault. Gulerette v. McKinley, 27 Hun, 320. Compare Young v. Johnson, 123 N. Y. 226. General reputation, not particular acts. — The character of the prose- cutrix cannot be impeached by proof of particular acts, but only by general reputation. McCombs v. State, 8 Ohio St. 643. Particular acts of unchastity with others cannot be proved. Mc- Combs v. State, 8 Ohio St. 643. Particular acts of unchastity with others cannot be proved. Con- tra, Doyle v. Jessup, 29 111. 460. The bad character of the woman for chastity may be shown. Bed- good v. State. 115 Ind. 275. Particular acts of unchastity with others cannot be proved. Richie v. State, 58 Ind. 355. Particular acts of unchastity with others cannot be proved. People v. McLean, 71 Mich. 307. Chap. XVI.] TEE LAW OF EVIDENCE. 631 New Jersey. Authority for text.— O'Blenis v. State, 47 N. J. L. 279. In a prosecution for having carnal knowledge of a woman under the age of consent, the defendant may prove his "reputation for morality, virtue, and honesty in living." State v. Snover, 63 N. J. L. 383. Reputation for chastity may be proved by witnesses who move in the same circle and have never heard the woman's chastity ques- tioned. State v. Brown, 64 N. J. L. 414; Zabrislcie \. Stale, 43 N. J. L. 644. Maryland. Evidence that the prosecutrix in rape had had intercourse with another person is not admissible, but her general character for chastity may be proved. Shartzer v. Slate, 63 Md. 141). One who is indicted as the keeper of a bawdy-house for harboring the prosecutrix when brought there by a man may show that the prosecutrix is a lewd girl and had previously been the inmate of such a house with her mother's knowledge. But evidence of her "general bad character" is not admissible, Brown v. Stale, 72 Md. 468. Pennsylvania. In an action for seduction particular acts of unchastity with others cannot be proved. Hoffman v. Ke merer, 44 Pa. 453. Article 135. what matters may be proved in reference to declarations relevant under articles 25~32. Whenever any declaration or statement made by a deceased person relevant or deemed to be relevant under Articles 25-32, both inclusive, or any deposition is proved, all matters may be proved in order to contradict it, or in order to impeach or confirm the credit of the person by whom it was made which might have been proved if that 632 A DIGEST OF [Part III. person had been called as a witness, and had denied upon cross-examination the truth of the matter suggested. 38 AMERICAN NOTE. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 163; Com. v. Cooper, 5 Allen (Mass.), 495; Carver v. State, 164 U. S. 677 Battle v. State, 74 Ga. 101; People v. Chin Mook Low, 51 Cal. 597 Lester v. State, 37 Fla. 382; Reran v. Trice's Excrs., 75 Va. 690 Richards v. State, 82 Wis. 172; Dabney v. Mitchell, 66 Ala. 495. New Jersey. Authority. — Credit of a d}'ing declaration may be attacked by proof of the conduct of the declarant. Donnelly v. State, 26 X. J. L. 465. Article 136. refreshing memory. A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the judge considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. 39 An expert may refresh his memory by reference to pro- fessional treatises. 40 38 7?. v. Drummond, 1784, 1 Lea. 337; R. v. Pike, 1829, 3 C. & P. 598. In these cases dying declarations were excluded, because the persons by whom they were made would have been incompetent as witnesses, but the principle would obviously apply to all the cases in question. 39 2 Ph. Ev. 480, &c; Taylor, ss. 1406-1413; R. N. P. 175-6; Phipson, 471-474. MR-ussex Peerage Case, 1844, 11 C. & F. 114-117. Chap. XVI.] THE LAW OF EVIDENCE. 633 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (loth ed.), sees. 436-438; 8 Encyclopaedia of Pleading and Practice, p. 135; Nat. Bank of Du- bois v. Nat. Bank of Williamsport, 114 Pa. St. 1; People v. Cotta, 49 Cal. 166; Bonnet v. Glattfeldt, 120 111. 166; Colloway v. Tamer, 77 Ala. 541; Mason v. Phelps, 48 Mich. 126; Healy v. Yisalia R. Co., 101 Cal. 585; Doicner v. Rowell, 24 Vt. 343; Kelsea v. Fletcher, 48 N. H. 282; Davis v. FieW, 56 Vt. 426; Chamberlain v. Sands, 27 Me. 458 ; Pinney v. AnoVws, 41 Vt. 631 ; Chamberlain v. Ossipee, 60 N. H. 212; IFeZcowie v. Batchelder, 23 Me. 85; Morrison v. Chapin, 97 Mass. 72; Co#?n v. FincenJ, 12 Cush. (Mass.) 98; Fletcher v. Powers, 131 Mass. 333; Alvord v. CoHm, 20 Pick. (Mass.) 418; Crittenden v. Rogers, 8 Gray (Mass.), 452; Parsons v. Manufacturers' Ins. Co., 16 Gray (Mass.), 463; Com. v. Je/fs, 132 Mass. 5; Co?ra. v. Ford. 130 Mass. 64; Com. v. Clancy, 154 Mass. 128; Com. v. Wafson, 154 Mass. 135; Dugan v. Mahoney, 11 Allen (Mass.), 572; Cord v. Foot, 56 Conn. 369; J5n'e v. Miller, 52 Conn. 446; Norwalk v. Ireland, 68 Conn. 13. A writing, under this article, is not evidence. Field v. Thompson, 119 Mass. 151. A witness may be required to look at a memorandum. Chapin v. Lapham, 20 Pick. (Mass.) 467. The witness need have no present recollection. State v. Miller, 53 la. 209; Hill v. State, 17 Wis. 675; Robinson v. Mulder, 81 Mich. 75; Paige v. Carter, 64 Cal. 489 ; Culver v. Scott Lumber Co., 53 Minn. 360; Dugan v. Mahoney, 11 Allen (Mass.), 572; Co#m v. Vincent. 12 Cush. (Mass.) 98; Morrison v. Chapin, 97 Mass. 72; Cohi. v. Rev. Stat., 1894; Wabash, etc., Ry. Co. v. Morgan, 152 Ind. 430; Working v. Gam, 148 Ind. 546; Tullis v. Stafford, 134 Ind. 258; Gilbert v. Swain, 9 Ind. App. 88; Marvin v. Sager, 145 Ind. 61; Grant v. Davis, 5 Ind. App. 116. * I believe the above to be the effect of 11 & 12 Vict. c. 42, s. 17, as- interpreted by the cases referred to, the effect of which is given by the words in brackets, also by common practice. Nothing can be more rambling or ill-arranged than the language of the section itself. See 2 Ph. Ev. 87-100: Taylor, 7th Ed., s. 480. B R. v. Tait, 1861, 2 F. & F. 553. Chap. XVII.] THE LAW OF EVIDENCE. 643 A deposition on a preliminary examination may be offered. People v. Prague, 72 Mich. 178. See p. 339, acts of 1895. New Jersey. Depositions.— G. S. 1895, " Evidence," 25-46, 63, 64, 66, 67 ; Laws of 1902, chap. 135. Maryland. Depositions.— P. G. L. 1888, art. 35, sees. 15-34. Pennsylvania. Depositions. — Pepper & Lewis' Digest of Laws, " Evidence," sees. 1-5; "Justices of the Peace," sees. 86-96; "Witnesses," sec. 19. Article 141. DEPOSITIONS UNDER 30 & 31 VICT. C. 35, S. 6. A deposition taken for the perpetuation of testimony in criminal cases, under 30 & 31 Vict. c. 35, s. 6, may be produced and read as evidence, either for or against the accused, upon the trial of any offender or offence to which it relates — if the deponent is proved to be dead, or if it is proved that there is no reasonable probability that the deponent will ever be able to travel or to give evidence, and if the deposition purports to be signed by the justice by or before whom it purports to be taken, and if it is proved to the satisfaction of the Court that rea- sonable notice in writing 7 of the intention to take such deposition was served upon the person (whether prosecutor or accused) against whom it was proposed to be read, and Sic. 1R. v. Shurmer, 1886, 17 Q. B. D. 323. 644 A DIGEST OF [Part HI. that such person or his counsel or attorney had or might have had, if he had chosen to be present, full opportunity of cross-examining the deponent. 8 Article 141a. depositions under the foreign jurisdiction act, 1890. Where a person is charged with an offence cognizable by a British Court in a foreign country and is liable to be sent for trial to any British possession, he may, before being so sent for trial, tender for examination to the Court in the foreign country any competent witness whose evidence he deems material for his defence, and whom he alleges himself unable to produce at the trial in the British possession ; and the Court in the foreign country shall proceed in the examination and cross-examination of the witness as though he had been tendered at a trial before that Court, and shall cause the evidence so taken to be reduced into writing, and shall transmit to the Criminal Court of the British possession a copy thereof certified as correct under the seal of the Court before which it was taken, or the signature of the judge of that Court; and thereupon the Court of the British possession before which the trial takes place shall allow so much of the evi- 8 30 & 31 Vict. c. 35, s. 36. The section is very long, and as the first part of it belongs rather to the subject of criminal procedure than to the subject of evidence, I have omitted it. The language is slightly altered. I have not referred to depositions taken before a coroner (see 50 & 51 Vict. c. 71, s. 4), because the section says noth- ing about the conditions on which they may be given in evidence. Their relevancy, therefore, depends on the common law principles ex- pressed in Article 32. They must be signed by the coroner; but these are matters not of evidence, but of criminal procedure. Chap. XVII.] THE LAW OF EVIDENCE. 645 dence so taken as would have been admissible according to the law and practice of that Court, had the witness been produced and examined at the trial, to be read and received as legal evidence at the trial. 9 Article 141b. depositions of children. Where on the trial of any person on indictment for any offence of cruelty within the meaning of the Prevention of Cruelty to Children Act, 1894, 10 or of any of the offences mentioned in the Schedule to the Act, 11 the Court is satisfied by the evidence of a registered medical practitioner that the attendance before the Court of any child in respect of whom the offence is alleged to have been committed would involve serious danger to its life or health, any deposition of the child taken under the 9 53 & 54 Vict. c. 37, s. 6. io The definition of "cruelty" is contained in sect. 1 of the Act, which is as follows: — "If any person over the age of sixteen years who has the custody, charge, or care of any child under the age of sixteen years, wilfully assaults, ill-treats, neglects, abandons, or ex- poses such child, or causes or procures such child to be assaulted, ill- treated, neglected, abandoned, or exposed in a manner likely to cause such child unnecessary suffering, or injury to its health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement)," &c, &c. 11 i.e. offences mentioned in the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), sect. 27 (exposing a child) ; sect. 55 (abducting a girl under sixteen) ; sect. 56 (stealing a child) ; sect. 43 (aggravated assault, if the child is under sixteen) ; sect. 52 (in- decent assault on a female, if she is under sixteen) ; and any offence under the Children's Dangerous Performances Act, 1879 (42 & 43 Vict. c. 34) ; and any other offence involving bodily injury to a child under the age of sixteen years. 646 A DIGEST OF [Pakt III. Indictable Offences Act, 1848, and mentioned in Article 140, or under this Act, as hereinafter mentioned, is admis- sible in evidence either for or against the accused person without further proof thereof — (a) if it purports to be signed by the justice by or before whom it purports to be taken ; and (b) if it is proved that reasonable notice of the intention to take the deposition has been served upon the person against whom it is proposed to use the same as evidence, and that that person or his counsel or solicitor had, or might have had if he had chosen to be present, an opportunity of cross-examining the child making the deposition. 12 Where a justice is satisfied by the evidence of a registered medical practitioner that the attendance before a Court of any child in respect of whom an offence of cruelty, 13 or any of the offences mentioned in the Schedule to the Act, 14 is alleged to have been committed, would involve serious dan- ger to its life or health, the justice may take in writing the deposition of such child on oath, and shall thereupon sub- scribe the same, and add thereto a statement of his reason for taking the same, and of the day when and place where the same was taken, and of the names of the persons (if •any) present at the taking thereof. The justice taking any such deposition shall transmit the same with his statement — (a) if the deposition relates to an offence for which any accused person is already committed for trial, to the proper 1257 & 58 Vict. c.-41, s. 14. "See Note 11, p. 490. 14 See Note 10, p. 489. Chap. XVII.] THE LAW OF EVIDENCE. 647 officers of the Court, for trial at which the accused person has been committed ; and (&) in any other case to the clerk of the peace of the county or borough in which the deposi- tion has been taken. 15 The deposition of the child referred to in this article need not be taken on oath in the case mentioned in Article 123a. Article 142. depositions under merchant shipping act, 1894. 16 Whenever, in the course of any legal proceedings in- stituted in any part of Her Majesty's dominions before any judge or magistrate or before any person authorised by law or by consent of parties to receive evidence, the testimony of any witness is required in relation to the subject- matter of that proceeding, any deposition that such witness may have previously made on oath in relation to the same subject-matter before any justice or magistrate in Her Majesty's dominions or any British consular officer elsewhere is admissible in evidence, subject to the following restrictions : — 1. If such proceeding is instituted in the United King- dom or British possessions, due proof must be given that such witness cannot be found in that kingdom or possession respectively. IB 57 & 58 Vict. c. 41, s. 13. 16 Id. c. 60, s. 691. There are some other cases in which deposi- tions are admissible by statute, but they hardly belong to the Law of Evidence. 648 A DIGEST OF [Pabt III. 2. If such deposition was made in the United Kingdom, it is not admissible in any proceeding instituted in the United Kingdom. 3. If the deposition was made in any British possession, it is not admissible in any proceeding instituted in that British possession. 4. If the proceeding is criminal the deposition is not admissible unless it was made in the presence of the person accused. A deposition so made must be authenticated by the sig- nature of the judge, magistrate, or consular officer before whom it was made, and he must certify (if the fact is so) that the accused was present at the taking thereof. It is not necessary in any case to prove the signature or the official character of the person appearing to have signed any such deposition; and in any criminal proceeding the certificate aforesaid is (unless the contrary is proved) sufficient evidence of the accused having been present in manner thereby certified. Nothing in this article contained affects any provision by Parliament or by any local legislature as to the admis- sibility of depositions or the practice of any court according to which depositions not so authenticated are admissible as evidence. Chap. XVIII.] THE LAW OF EVIDENCE. 649 CHAPTER XVIII. OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE. Article 143. A new trial will not be granted in any civil action on the ground of the improper admission or rejection of evidence, unless in the opinion of the Court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial of the action. 1 If in a criminal case evidence is improperly rejected or admitted, there is no remedy unless the prisoner is con- victed, and unless the judge, in his discretion, states a case for the Court for Crown Cases Reserved ; but if that Court is of opinion that any evidence was improperly admitted or rejected, it must set aside the conviction. AMERICAN NOTE. General. Authority. — 2 Encyclopaedia of Pleading and Practice, p. 1. First paragraph of text. Hornbackle v. Stafford, 111 U. S. 389; Gilbert v. Moline Co., 119 U. S. 491; Bulkley v. Devine, 127 111. 406; Oirard Ins. Co. v. Warr, 46 Pa. St. 504; Ham v. Wis., etc., R. Co., 61 la. 716; Thorndike v. Boston, 1 Mete. (Mass.) 242; Richardson y. Warren, 6 Allen (Mass.), 552; Flood v. Clemence, 106 Mass. 299; Barry x. Bennett, 7 Mete. ( Mass. ) 354 ; Holbrook v. Jackson, 7 Cush. (Mass.) 136; Toapley v. Forbes, 2 Allen (Mass.), 20; McAvoy v. 1 S. C. R., Order XXXIX., 6. G50 A DIGEST OF [Part III. Wright, 137 Mass. 207; State v. Alford, 31 Conn. 40; Morehouse v. Remson, 59 Conn. 401; State v. Einkead, 57 Conn. 157; People's Sav. Bank v. Noricalk, 56 Conn. 558; Bradley v. Bailey, 56 Conn. 379; ifot'n's Appeal, 73 Conn. 638, 48 Atl. 966. The fact that evidence was erroneously admitted or rejected will not insure the granting of a new trial in a criminal case where the defendant manifestly could not have been injured thereby. Ryan v. State, 83 Atl. (N. J.) 672; Wallace v. People, 159 111. 446; Peo- ple v. Marshall, 112 Cal. 442. An error in the admission of incompetent evidence, in a court of record, is cured by a subsequent direction to the jury to disregard it. People v. Parish, 4 Den. 153. Striking out of competent evidence is no ground for reversing a judgment, where testimony to the same general affect is subsequently admitted. Miller v. Fort Lee Park & Steamboat Co., 73 Hun, 150; affirmed in 149 N. Y. 598. (No opinion.) When improper evidence has been erroneously received, a direc- tion to disregard it is equivalent to striking it out. Mattes v. Frankel, 65 Hun, 203, 47 N. Y. St. R. 507. Harmless error disregarded. — Minis v. State, 16 Ohio St. 221, 233. A reversal is not necessarily required by irrelevant evidence, but if there is excitement and the accused was prejudiced a reversal would be granted. Sharkey v. Ctate, 4 Ohio Circ. Ct. 101. Waiver. — Objection to evidence must be made at the trial; other- wise the point is waived. St. L., A. d T. H. R. R. Co. v. Eggmann, 161 111. 155. Curing error. — Errors in the admission of evidence may be cured by subsequent exclusion. Taylor v. Cox, 153 111. 221; C. & O. T. Ry. Co. v. Gaeinowski, 155 111. 189. Compare Norris v. Warner, 59 111. App. 300. Errors in ruling in evidence may be cured in the charge. Mc- tfamara v. Godair, 161 111. 228. Error in admitting evidence is not cured by a direction in a charge to disregard it. Chicago v. W. & L. 0. & L. Mfg. Co., 14 111. 219; Peck v. Cooper, 13 Brad. 27. Presumed to be prejudicial. — Irrelevant evidence is presumed to be injurious. Johnson v. Anderson, 143 Ind. 493; Ohio, etc., Ry. Co. v. Stein, 133 Ind. 243, 246. It is presumed that evidence improperly admitted influenced the trial, unless the contrary appears. Baker v. Dessauer, 49 Ind. 28 ; Barnett v. Leonard, 66 Ind. 422; Thompson v. Wilson, 34 Ind. 94. Chap. XVIII.] THE LAW OF EVIDENCE. 651 Effect of evidence. — An erroneous admission of testimony is cured by the charge of the judge to disregard it as immaterial. Wreggett v. Barnett, 99 Mich. 477. The erroneous exclusion of evidence is cured if such question is subsequently answered or the answers to the excluded questions are drawn from the witness, or when counsel have opportunity to inquire into the subject. Mason v. Patrick, 100 Mich. 577; Rice v. Rankans, 101 Mich. 378; Burt v. Long, 106 Mich. 210. Error is not cured in a criminal case where evidence which has an injurious tendency against the defendant when received under an objection is stricken out. People v. Fowler, 104 Mich. 449. New Jersey. Rule in criminal cases. — Oenz v. State, 59 N. J. L. 488 ; Ryan v. State, 83 Atl. 672. The admission of illegal testimony is no ground for reversal in the absence of injury. Hunter v. State, 40 N. J. L. 538. Error cured by instructions. — Where evidence is improperly re- ceived, the error is cured if the judge subsequently excludes it in such manner that the accused could not be injuriously affected. Bullock v. State, 65 N. J. L. 557; State v. Sprague, 64 N. J. L. 419. Civil cases. — Not reversible error when the exclusion of evidence works no injury. Freeman v. Bartlett, 47 X. J. L. 33; Nordsick v. Baxter, 64 N. J. L. 530. The error of admitting oral evidence of a writing without pro- ducing the writing itself is cured if the writing be afterward pro- duced. Lyons v. Davis, 30 N". J. L. 301; Kutzmeyer v. Ennis, 27 N. J. L. 371. Verdict not set aside because merely cumulative evidence was im- properly admitted, when there was sufficient legal evidence to justify the verdict. Chase v. Caryl, 57 N. J. L. 545. Maryland. Authorities. — Heptasophs v. ]\Iilcs, 92 Md. 613. No reversal for error in admission of evidence unless injury be shown. Coal Co. v. Cox, 39 Md. 1; Williams v. Higgms, 30 Md. 404; Beatty v. Mason, 30 Md. 409; Hayes v. Wells, 34 Md. 512; Wyeth v. Walzl, 43 Md. 426; B. & O. R. Co. v. Cain, 81 Md. 87; B. & O. R. Co. v. Chambers, 81 Md. 371; Lake Roland R. Co. v. 052 DIGEST, LAW OF EVIDENCE. [Past III, Chap. XVIII.] Hibernian Society, 83 Md. 420; B. tt 0. R. Co. v. Strunz, 79 Md. 335. When improper evidence was admitted as to facta which were proved by other and competent evidence there will be no reversal. Leffler v. Allard, 18 Md. 545; Hayes v. Wells, 34 Md. 512; Black v. Batik, 96 Md. 399. If evidence that was improperly admitted is withdrawn and the jury instructed to disregard it, the error is cured. Williams v. Higgins, 30 Md. 404; Boone v. Purnell, 28 Md. 607. No reversal for the refusal to admit evidence so indirect and in- conclusive that there could have been no injury. Buschman v. Codd, 52 Md. 202. Pennsylvania. Authorities. — Steel v. Glass, 189 Pa. 283; Insurance Co. v. Marr, 46 Pa. 504. Error cured by instruction to the jury to disregard. Costello v. Costello, 191 Pa. 379. The introduction of an incorrect model of a house where murder was committed is no ground for reversal when no injury is shown. Com. v. Fry, 198 Pa. 379. An error in admitting a witness whose incompetency is brought out on cross-examination is cured by instructing the jury to dis- regard the testimony. Lester v. McDowell, 18 Pa. 91. Where a witness is excluded as incompetent, and the facts are later proved by other testimony and are undisputed, there is no error. Powell v. Derickson, 178 Pa. 612. No reversal for the admission of improper testimony when the facts are abundantly sustained by proper evidence. Com. t, Lenousky, 206 Pa. 277. The admission of incompetent evidence and the withdrawal of It later before the argument is no ground for a continuance or a reversal. Rathgeoe v. Railroad Co., 179 Pa. 31. APPENDIX OF NOTES NOTE I. (To Abticle i. — Definition of Teems.) The definitions are simply explanations of the senses in which the words defined are used in this work. They will be found, however, if read in connection with my ' Intro- duction to the Indian Evidence Act/ to explain the manner in which it is arranged. I use the word " presumption " in the sense of a pre- sumption of law capable of being rebutted. A presumption of fact is simply an argument. A conclusive presumption I describe as conclusive proof. Hence the few presump- tions of law which I have thought it necessary to notice are the only ones I have to deal with. In earlier editions of this work I gave the following definition of relevancy. " Facts, whether in issue or not, are relevant to each other when one is, or probably may be, or probably may have been — the cause of the other ; the effect of the other ; an effect of the same cause; a cause of the same effect ; [653] 654 A DIGEST OF or when the one shows that the other must or cannot have occurred, or probably does or did exist, or not; or that any fact does or did exist, or not, which in the common course of events would either have caused or have been caused by the other ; provided that such facts do not fall within the exclusive rules contained in Chapters III., IV., V., VI. ; or that they do fall within, the exceptions to those rules contained in those chapters." This was taken (with some verbal alterations) from a pamphlet called ' The Theory of Relevancy for the purpose of Judicial Evidence, by George Clifford Whitworth, Bom- bay Civil Service. Bombay, 1875.' The 7th section of the Indian Evidence Act is as follows : " Facts which are the occasion, cause, or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant." The 11th section is as follows: — " Facts not otherwise relevant are relevant ; " (1) If they are inconsistent with any fact in issue or relevant fact; " (2) If by themselves, or in connection with other facts, they make the existence or non-existence of any fact in issue, or relevant fact, highly probable or improbable." In my ' Introduction to the Indian Evidence Act,' I examined at length the theory of judicial evidence, and tried to show that the theory of relevancy is only a particu- lar case of the process of induction, and that it depends on THE LAW OF EVIDENCE. 655 the connection of events as cause and effect. This theory does not greatly differ from Bentham's, though he does not seem to me to have grasped it as distinctly as if he had lived to study Mill's Inductive Logic. My theory was expressed too widely in certain parts, and not widely enough in others; and Mr. Whitworth's pam- phlet appeared to me to have corrected and completed it in a judicious manner. I accordingly embodied his definition of relevancy, with some variations and additions, in the text of the first edition. The necessity of limiting in some such way the terms of the 11th section of the Indian Evidence Act may be inferred from a judgment by Mr. Justice West (of the High Court of Bombay), in the case of R. v. Parb- hudas and others, printed in the ' Law Journal,' May 27, 1876. I have substituted the present definition for it, not because I think it wrong, but because I think it gives rather the principle on which the rule depends than a convenient practical rule. As to the coincidence of this theory with English law, I can only say that it will be found to supply a key which will explain all that is said on the subject of circumstantial evidence by the writers who have treated of that subject. Mr. Whitworth goes through the evidence given against the German, Miiller, executed for murdering Mr. Briggs on the North London Railway, and shows how each item of it can be referred to one or the other of the heads of relevancy which he discusses. The theory of relevancy thus expressed would, I believe, suffice to solve every question which can arise upon the subject; but the legal rules based upon an unconscious 656 A DIGEST OF apprehension of the theory exceed it at some points and fall short of it at others. NOTE II. (To Article 2. — Relevance.) See 1 Ph. Ev. 493, &c. ; Best, se. Ill and 251 ; Taylor, Pt. II. Ch. II. ; Phipson, 49-52. For instances of relevant evidence held to be insufficient for the purpose for which it was tendered on the ground of remoteness, see R. v. , 1826, 2 C. & P. 459; and Mann v. Lang, 1835, 3 A. & E. 699. Mr. Taylor (s. 949) adopts from Professor Greenleaf the statement that there is " evidence which the law excludes on public grounds, namely, that which involves the unneces- sary disclosure of matter that is indecent or offensive to public morals, or injurious to the feelings of third persons." The authorities given for this are actions on wagers which the Court refused to try, or in which they arrested judg- ment, because the wagers were in themselves impertinent and offensive, as, for instance, a wager as to the sex of the Chevalier D'Eon (Da Costa v. Jones, 1778; Cowp. 729). No action now lies upon a wager, and I can find no author- ity for the proposition advanced by Professor Greenleaf. I know of no case in which a fact in issue or relevant to an issue which the Court is bound to try can be excluded merely because it would pain some one who is a stranger to the action. Indeed, in Da Costa v. Jones, Lord Mansfield said expressly: " Indecency of evidence is no objection to its being received where it is necessary to the decision of a THE LAW OF EVIDENCE. 657 civil or criminal right " (p. 734). (See Article 129, and Note XLVI.) NOTE III. (To Akticle 4. — Acts of Conspirators.) On this subject, see also 1 Ph. Ev. 157-164; Taylor, as. 591-595; Best, s. 508; 1 Euss. on Crimes, 528-532. (See, too, The Queens Case, 1820, 2 Br. & Bing. 309- 10.) Phipson, 84-5, 90-1. The principle is substantially the same as that of prin- cipal and accessory, or principal and agent. When vari- ous persons conspire to commit an offence each makes the rest his agents to carry the plan into execution. (See, too, Article 17, Note XL) NOTE IV. (To Article 5. — Relevancy of Facts constituting Title.) The principle is fully explained and illustrated in Mal- colmson v. O'Dea, 1862, 10 H. L. C. 593. See particu- larly the reply to the questions put by the House of Lords to the Judges, delivered by Willes, J., 611-622. See also 1 Ph. Ev. 234-239 ; Taylor, ss. 658-667; Best, s. 499. Mr. Philips and Mr. Taylor treat this principle as an exception to the rule excluding hearsay. They regard the statements contained in the title-deeds as written state- ments made by persons not called as witnesses. I think the deeds must be regarded as constituting the transactions 42 658 A DIGEST OF which they effect; and in the case supposed in the text, those transactions are actually in issue. When it is as- serted that land belongs to A, what is meant is, that A is entitled to it by a series of transactions of which his title-deeds are by law the exclusive evidence (see Article 90). The existence of the deeds is thus the very fact which is to be proved. Mr. Best treats the case as one of " derivative evidence," an expression which does not appear to me felicitous. NOTE V. (To Article 8. — Statements accompanying Acts,. Complaints, &c.) The items of evidence included in this article are often referred to by the phrase " res gestae," which seems to have come into use on account of its convenient obscurity. The doctrine of " res gestae " was much discussed in the case of Doe v. Tatham, 1837. In the course of the argu- ment, Bosanquet, J., observed, " How do you translate res gestae? gestae, by whom? " Parke, B., afterwards observed, " The acts by whomsoever done are res gesta?, if relevant to the matter in issue. But the question is, what are rele- vant ? " (7 A. & E. 355.) In delivering his opinion to the House of Lords, the same Judge laid down the rule thus : " Where any facts are proper evidence upon an issue [i.e. when they are in issue, or relevant to the issue] all oral or written declarations which can explain such facts may be received in evidence." (Same Case, 4 Bing. X. C. 548.) The question asked by Baron Parke goes to the root THE LAW OF EVIDENCE. 659 of the whole subject, and I have tried to answer it at length in the text, and to give it the prominence in the statement of the law which its importance deserves. Besides the cases cited in the illustrations, see cases as to statements accompanying acts collected in 1 Ph. Ev. 152-57; Taylor, ss. 583-91; and Phipson, 236-43. I have stated, in accordance with R. v. Walker, 1839, 2 M. & K. 212, that the particulars of a complaint are not admis- sible; but I have heard Willes, J., rule that they were on several occasions, vouching Parke, B., as his authority. jR. v. Walker was decided by Parke, B., in 1839. Though he excluded the statement, he said, " The sense of the thing certainly is, that the jury should in the first instance know the nature of the complaint made by the prosecutrix, and all that she then said. But for reasons which I never could understand, the usage has obtained that the prosecutrix's counsel should only inquire generally whether a complaint was made by the prosecutrix of the prisoner's conduct towards her, leaving the prisoner's counsel to bring before the jury the particulars of that complaint by cross- examination." Lord Bramwell was in the habit, during the latter part of his judicial career, of admitting the complaint itself, and other judges have sometimes done the same. The practice is certainly in accordance with common sense. The author's note is here left as he wrote it. His own practice on the Bench was the same as that which he ascribes to Willes, J., Parke, B., and Lord Bramwell, and the same course, of admitting the terms of the complaint as part of the evidence for the prosecution, was habitually 660 A DIGEST OF followed by Mr. (now Lord) Justice Smith, and the late Mr. Justice Cave, as long as they were Judges of the Queen's Bench Division. Since the last edition of this work was published, the law on the subject has been enlarged, if not elucidated, by the decision of B. v. Lillyman, [1896], 2 Q. B. 167. The count upon which Lillyman was substantially tried, and upon which alone (ib. at p. 170) he was convicted, charged that he unlawfully attempted to have carnal know- ledge of a girl under sixteen and over thirteen. The question of her consent was therefore immaterial (Criminal Law Amendment Act, 1885, s. 5, by which the offence was created). In giving her evidence, however, the girl as- serted that she did not consent to the attempt. Sir Henry Hawkins admitted evidence of the terms of a complaint made by the girl to her mistress, in the absence of the pris- oner, very shortly after the commission of the acts charged. The prisoner was convicted, and the case was reserved on the question whether this evidence was admissible. The Court (Lord Kussell, C.J., Pollock, B., Hawkins, Cave, and Wills, JJ.) affirmed the conviction. The ground of the decision is clearly stated in two passages of the judgment of the Court, delivered by Sir Henry Hawkins. " It [the complaint] is clearly not admissible as evidence of the facts complained of. . . . The complaint can only be used as evidence of the consistency of the conduct of the prosecu- trix with the story told by her in the witness-box, and as being inconsistent with her consent to that of which she complains " (ib. at p. 170). " The evidence is admissible only upon the ground that it was a complaint of that which THE LAW OF EVIDENCE. 661 is charged against the prisoner, and can be legitimately used only for the purpose of enabling the jury to judge for themselves whether the conduct of the woman was consist- ent with her testimony on oath given in the witness-box negativing her consent, and affirming that the acts com- plained of were against her will, and in accordance with the conduct they would expect in a truthful woman under the circumstances detailed by her" (ib. at p. 177). In other- words, the judgment decides that where a woman has made a statement as to her own consent, which in the case before the Court happened to be perfectly irrelevant, the details of her complaint may be admitted only because they may serve as a test of the credibility which ought to attach to the relevant parts of her testimony. This view was reiterated by Sir Henry Hawkins in the case of R. v. Rowland tried at the Chelmsford Summer Assizes, 1898 (Times, July 6, 1898), when he refused to admit evidence of the terms of a complaint, though the charge was one of rape ; but, it must be inferred, the woman's consent was practically not in issue. The judge said, " All that R. v. Lillyman decided was that the terms of a complaint were only admissible as evidence of a want of consent by the prosecutrix, and not as evidence of the truth of the charge against the person named in the com- plaint." As to this decision it must be remarked that even if the woman's consent was not in issue, and if nothing but the prisoner's identity was disputed, the woman's want of consent must have formed part of the story deposed to by her, and the distinction between this case, where consent was certainly a relevant matter, and Lillyman' s case, where C62 .1 DIG ESI' OF it certainly was not, is not apparent. The same judge, in Beatty v. Cull lag worth, 1896, 60 J. P. 740, a civil suit for an assault, held that the principle of R. v. Lillyman ap- plied only to prosecutions for rape and similar offences, and rejected evidence either of a complaint having been made, or of the terms of the complaint, it is not clear which, but probably the latter. His decision was ap- proved of in the Court of Appeals, Times, January 14, 1897. It is not easy to see why evidence of the terms of a complaint should be admissible in order to test credibility on one point only; and the Recorder of London seems to hold there is no such restriction. In R. v. Folley, [1896], 60 J. P. 569, the prisoner and his wife were together in a room, cries were heard, and the wife came out suffering from a wound. At the trial the wife deposed that she had herself inflicted the wound. The Recorder, after referring to R. v. Lillyman, said, " that he should hold that the prin- ciple of that case applied to all cases," and allowed a con- stable to be recalled, who deposed that the wife in giving him an account of what happened, said, " Mr. Folley done it." Here there was no question of consent. The total result is that the law is not easy to state with confidence, and in practice the administration of it is be- lieved not to be uniform. On the Northern Circuit the details of complaints have, since Tallyman's case, been ad- mitted in all cases of sexual offences against women and girls, whether or not the question of consent was, in fact or legally, at issue ; and a similar practice seems to obtain more or less uniformly on other circuits and at the Old TJailev. THE LAW OF EVIDENCE. 663 NOTE VI. (To Articles 10, 11, 12. — Relevance of Similar Facts, System, &c.) Article 10 is equivalent to the maxim, " Res inter alios acta alteri nocere non debet," which is explained and com- mented on in Best, ss. 506-510 (though I should scarcely adopt his explanation of it), and by Broom (' Maxims/ 908-922). The application of the maxim to the Law of Evidence is obscure, because it does not show how uncon- nected transactions should be supposed to be relevant to each other. The meaning of the rule must be inferred from the exceptions to it stated in Articles 11 and 12, which show that it means, You are not to draw inferences from one transaction to another which is not specifically con- nected with it merely because the two resemble each other. They must be linked together by the chain of cause and effect in some assignable way before you can draw your inference. In its literal sense the maxim also fails, because it is not true that a man cannot be affected by transactions to which he is not a party. Illustrations to the contrary are obvious and innumerable; bankruptcy, marriage, indeed every transaction of life, would supply them. The exceptions to the rule given in Articles 11 and 12 are generalised from the cases referred to in the Illustra- tions. It is important to observe that though the rule is expressed shortly, and is sparingly illustrated, it is of very much greater importance and more frequent application than the exceptions. It is indeed one of the most charac- 664 A DIGEST OF teristic and distinctive parts of the English Law of Evi- dence, for this is the rule which prevents a man charged with a particular offence from having either to submit to imputations which in many cases would be fatal to him, or else to defend every action of his whole life in order to explain his conduct on the particular occasion. A state- ment of the Law of Evidence which did not give due promi- nence to the four great exclusive rules of evidence of which this is one would neither represent the existing law fairly nor in my judgment improve it. The exceptions to the rule apply more frequently to criminal than to civil proceedings, and in criminal cases the Courts are always disinclined to run the risk of preju- dicing the prisoner by permitting matters to be proved which tend to show in general that he is a bad man, and so likely to commit a crime. In each of the cases by which Article 12 is illustrated, the evidence admitted went to prove the true character of facts which, standing alone, might naturally have been accounted for on the supposition of accident — a supposition which was rebutted by the repe- tition of similar occurrences. In the case of R. v. Gray (Illustration (a)), there were many other circumstances which would have been sufficient to prove the prisoner's guilt, apart from the previous fires. That part of the evi- dence, indeed, seemed to have little influence on the jury. Garners Case (Illustration (c), note) was an extraordi- nary one, and its result was in every way unsatisfactory. Some account of this case will be found in the evidence given by me before the Commission on Capital Punish- ments which sat in 1866. THE LAW OF EVIDENCE. 665 NOTE VII. (To Article 13. — Course of Business.) As to presumptions arising from the course of office or business, see Best, s. 403 ; 1 Ph. Ev. 480-4 ; Taylor, ss. 176-82. The presumption, " Omnia esse rite acta," also applies. See Broom's 'Maxims,' 942; Best, ss. 353-65; Taylor, s. 143, &c. ; 1 Ph. Ev. 480 ; and Star. 757, 763. NOTE VIII. (To Article 14. — Hearsay.) The unsatisfactory character of the definitions usually given as hearsay is well-known. See Best, s. 495 ; Taylor, ss. 5 67-70. J The definition given by Mr. Philips suffi- ciently exemplifies it : " When a witness, in the course of 1 See, too, Phipson, pp. 200-204 ; particularly at p. 202, where Sir James Stephen's account of the objection to hearsay as evidence is criticised on the ground that it ignores the possibility of the rele- vancy of the fact which hearsay alleges to have been stated, and that the objection to its being stated by a non-witness ought to be consid- ered under the head of proof in answer to the question how relevant facts may be proved. The answer is that the leading feature of hear- say is that it proves a statement by a non-witness, which, taken alone, does not come within the definition of " relevant," and that it is therefore better treated of when considering the question, What may be proved? than in dealing witli the subsequent question, How may a relevant fact be proved? The practical advantage of the au- thor's method of treatment is that he separates admissions and con- fessions which owe their force to the circumstances under which they are made, from public and other formal documents which for pur- poses of convenience are made evidence by the operation of the law. 666 A DIGEST OF stating what has come under the cognizance of his own senses concerning a matter in dispute, states the language of others which he has heard, or produces papers which he identifies as being written by particular individuals, he offers what is called hearsay evidence. This evidence may sometimes be the very matter in dispute," &c. (1 Ph. Ev. 143). If this definition is correct, the maxim," Hearsay is no evidence," can only be saved from the charge of false- hood by exceptions which make nonsense of it. By attach- ing to it the meaning given in the text it becomes both intelligible and true. There is no real difference between the fact that a man was heard to say this or that, and any other fact. Words spoken may convey a threat, supply the motive for a crime, constitute a contract, amount to slander, &c, &c. ; and if relevant or in issue, on these or other grounds, they must be proved, like other facts, by the oath of some one who heard them. The important point to re- member about them is that bare assertion must not, gener^ ally speaking, be regarded as relevant to the truth of the matter asserted. The doctrine of hearsay evidence was fully discussed by many of the judges in the case of Doe d. Wright v. Tatham, 1837, on the different occasions when that case came be- fore the Court (see 7 A. & E. 313-408; 4 Bing. K C. 489-573). The question was whether letters addressed to a deceased testator, implying that the writers thought him sane, but not acted upon by him, could be regarded as relevant to his sanity, which was the point in issue. The case sets the stringency of the rule against hearsay in a light which is forcibly illustrated by a passage in the judgment THE LAW OF EVIDENCE. 067 of Baron Parke (7 A. & E. 385-8), to the following effect : — He treats the letters as " statements of the writers, not on oath, of the truth of the matter in question, with this in addition, that they had acted upon the statements on the faith of their being true by their sending the letters to the testator." He then goes through a variety of illustrations which had been suggested in argument, and shows that in no case ought such statements to be regarded as relevant to the truth of the matter stated, even when the circumstances were such as to give the strongest possible guarantee that such statements expressed the honest opinions of the persons who made them. Amongst others he mentions the following : — " The conduct of the family or relations of a testator taking the same precautions in his absence as if he were a lunatic — his election in his absence to some high and responsible office ; the conduct of a physician who permitted a will to be executed by a sick testator ; the conduct of a deceased captain on a question of seaworthiness, who, after examining every part of a vessel, embarked in it with his family; all these, when deliberately considered, are, with reference to the matter in issue in each case, mere instances of hearsay evidence — mere statements, not on oath, but applied in or vouched by the actual conduct of persons by whose acts the litigant parties are not to be bound." All these matters are therefore to be treated as irrelevant to the questions at issue. These observations make the rule quite distinct, but the reason suggested for it in the concluding words of the passage extracted appears to be weak. That passage im- 668 A DIGEST OF plies that hearsay is excluded because no one " ought to be bound by the act of a stranger." That no one shall have power to make a contract for another or commit a crime for which that other is to be responsible without his au- thority is obviously reasonable, but it is not so plain why A's conduct should not furnish good grounds for inference as to B's conduct, though it was not authorised by B. The importance of shortening proceedings, the importance of compelling people to procure the best evidence they can, and the importance of excluding opportunities of fraud, are considerations which probably justify the rule excluding hearsay; but Baron Parke's illustrations of its operation clearly prove that in some cases it excludes the proof of matter which, but for it, would be regarded not only as relevant to particular facts, but as good grounds for be- lieving in their existence. NOTE IX. (To Article 15. — Admissions defined.) This definition is intended to exclude admissions by pleading, admissions which, if so pleaded, amount to es- toppels, and admissions made for the purposes of a cause by the parties or their solicitors. These subjects are usu- ally treated of by writers on evidence ; but they appear to me to belong to other departments of the law. The subject, including the matter which I omit, is treated at length in 1 Ph. Ev. 308-401; Taylor, ss. 723-861; and Phipson, 205-235. A vast variety of cases upon admissions of every sort may be found by referring to Roscoe. X. P. (In- THE LAW OF EVIDENCE. GG9 dex, under the word Admissions.) It may perhaps be well to observe that when an admission is contained in a document, or series of documents, or when it forms part of a discourse or conversation, so much and no more of the document, series of documents, discourse or conversation, must be proved as is necessary for the full understanding of the admission, but the judge or jury may of course attach degrees of credit to different parts of the matter proved. This rule is elaborately discussed and illustrated by Mr. Taylor, ss. 725-3S. It has lost much of the importance which attached to it when parties to actions could not bo witnesses, but could be compelled to make admissions by hills of discovery. The ingenuity of equity draughtsmen was under that system greatly exercised in drawing an- swers in such a form tl at it was impossible to read part of them without reading the whole, and the ingenuity of the Court was at least as much exercised in countermining their ingenious devices. The power of administering interroga- tories, and of examining the parties directly, has made great changes in these matters. NOTE X. (To Article 16. — Admissions, by whom made.) As to admissions by parties, see Moriarty v. L. C. & D. Railway, 1870, L. R. 5 Q. B. 320, per Blackburn, J.; Alner v. George, 1808, 1 Camp. 302; Bauerman v. Rade- nius, 1798, 7 T. R. 663. As to admissions by parties interested, see Spargo v. Brown, 1829, 9 B. & C. 935. 670 A DIGEUT OF See also on the subject of this article, 1 Ph. Ev. 362-3, 369, 398; Taylor, ss. 740-3, 755-7, 794; Koscoe, N. P. 67 ; and Phipson, 215-35. As to admissions by privies, see 1 Ph. Ev. 394-7, and Taylor (from Greenleaf), s. 787. NOTE XL (To Article 17. — Admissions by Agents.) The subject of the relevancy of admissions by agents is rendered difficult by the vast variety of forms which agency assumes, and by the distinction oetween an agent for the purpose of making a statement and an agent for the purpose of transacting business. If A sends a message by B, B's words in delivering it are in effect A's; but B's statements in relation to the subject-matter of the message have, as ouch, no special value. A's own statements are valuable if they suggest an inference which he afterwards contests because they are against his interest ; but when the agent's duty is done, he has no special interest in the matter. The principle as to admissions by agents is stated and explained by Sir W. Grant in Fairlie v. Hastings, 1804, 10 Ve. 126-7. NOTE XII. (To Article 18. — Admissions by Strangers.) See, for a third exception (which could hardly occur now), Clay v. Langslow, 1827, M. & M. 45. THE LAW OF EVIDENCE. 671 NOTE XIII. (To Article 19. — Admissions by Party referred to.) This comes very near to the case of arbitration. See, as to irregular arbitrations of this kind, 1 Ph. Ev. 383 ; Taylor, ss. 760-3 ; Phipson, 233-4. NOTE XIV. (To Article 20. — Admissions without Prejudice.) See more on this subject in 1 Ph. Ev. 326-8; Taylor, ss. 774, 795 ; K. K P. 62-3 ; Phipson, 207-8. NOTE XV. (To Article 22. — Confessions under Threat.) On the law as to Confessions, see 1 Ph. Ev. 401-423 ; Taylor, ss. 872-84, and s. 902; Best, ss. 551-74; Roscoe, Cr. Ev. 34-49; 3 Kuss. on Crimes, by Greaves, 477-537; Phipson, 244-55. Joy on Confessions reduces the law on the subject to the shape of 13 propositions, the effect of all of which is given in the text in a different form. Many cases have been decided as to the language which amounts to an inducement to confess (see Eoscoe, Or. Ev. 35-38 ; and Phipson, 250-3, where most of them are collected). They are, however, for practical purposes, summed up in R. v. Baldry, 1852, 2 Den. 430, which is the authority for the last lines of the first paragraph of this artiole. 072 A DIGEST OF NOTE XVI. (To Article 23. — Confessions on Oath.) Cases are sometimes cited to show that if a person is examined as a witness on oath, his deposition cannot be used in evidence against him afterwards (see Taylor, ss. 886 and 895, n. 5; also 3 Euss. on Cri. 511, &c). All these cases, however, relate to the examinations before magistrates of persons accused of crimes, under the statutes which were in force before 11 & 12 Vict. c. 42, and which, like that statute, authorised statements by prisoners, but not their examination on oath. Since the decisions in R. v. Scott, 1856, 1 D. & B. 47; 25 L. J., M. C. 128, and R. v. Erdheim [1896], 2 Q. B. 260, decided on the Bankruptcy Acts of 1849 and 1883, it seems that these cases must be considered obsolete ; see par- ticularly the judgment of Russell, L.C. J., in the latter case, at pp. 267-8. The point is of considerable importance since the passing of the Criminal Evidence Act, 1898. NOTE XVII. (To Article 26. — Dying Declakations.) As to dying declarations, see 1 Ph. Ev. 239-52 ; Taylor, ss. 714-22 ; Best, s. 505 ; Starkie, 32 & 38 ; 3 Buss. Cri. 388-97; Roscoe, Crim. Ev. 27-33; Phipson, 298-303; R. v. Baker, 2 Mo. & Ro., 1837, 53, is a curious case on this subject. A and B were both poisoned by eating the same cake. C was tried for poisoning A. B's dying de- THE LAW OF EVIDENCE. 673 claration that she made the cake in C's presence, and put nothing bad in it, was admitted as against C, on the ground that the whole formed one transaction. NOTE XVIII. (To Article 27. — Declarations in Course of Business.) 1 Ph. Ev. 280-300 ; Taylor, ss. 714-22 ; Best, 501 ; R. N. P. 60-2 ; Phipson, 268-75 ; and see note to Price v. Lord Torrington, 1704, 2 S. L. C. 310. The last case on the subject is Massey v. Allen, 1879, 13 Ch. Div. 558. NOTE XIX. (To Article 28. — Declarations against Interest.) The best statement of the law upon this subject will be found in Higham v. Ridgway, and the note thereto, 2 S. L. C. 317-8. See also 1 Ph. Ev. 253-80; Taylor, ss. 668- 96a; Best, s. 500; R N. P. 55-59; Phipson, 258-67. A class of cases exists which I have not put into the form of an article, partly because their occurrence since the commutation of tithes must be very rare, and partly because I find a great difficulty in understanding the place which the rule established by them ought to occupy in a systematic statement of the law. They are cases which lay down the rule that statements as to the receipts of tithes and moduses made by deceased rectors and other ecclesiastical corpora- tions sole are admissible in favour of their successors. 43 C74 A DIGEST OF There is no doubt as to the rule (see, in particular, Short v. Lee, 1821, 2 Jac. & Wal. 464; and Young v. Clare Hall, 1851, 17 Q. B. 529). The difficulty is to see why it was ever regarded as an exception. It falls directly within the principle stated in the text, and would appear to be an obvi- ous illustration of it ; but in many cases it has been declared to be anomalous, inasmuch as it enables a predecessor in title to mak^ evidence in favour of his successor. This sug- gests that Article 28 ought to be limited by a proviso that a declaration against interest is not relevant if it was made by a predecessor in title of the person who seeks to prove it, unless it is a declaration by an ecclesiastical corporation sole, or a member of an ecclesiastical corporation aggregate (see Short v. Lee), as to the receipt of a tithe or modus. Some countenance for such a proviso may be found in the terms in which Bayley, J., states the rule in Gleadow v. Atkin (ante, p. 107), and in the circumstance that when it first obtained currency the parties to an action were not competent witnesses. But the rule as to the indorsement of notes, bonds, &c, is distinctly opposed to such a view. NOTE XX. (To Article 30. — Declarations as to Public and General Rights.) Upon this subject, besides the authorities in the text, see 1 Ph. Ev. 169-97; Taylor, ss. 607-34; Best, s. 497; R. K P. 48-51 ; Phipson, 276-87. A great number of cases have been decided as to the par- ticular documents, &c, which fall within the rule given in THE LAW OF EVIDENCE. 675 the text. They are collected in the works referred to above, but they appear to me merely to illustrate one or other of the branches of the rule, and not to extend or vary it. An award, e.g., is not within the last branch of illustration (6), because it " is but the opinion of the arbitrator, not upon his own knowledge " (Evans v. Bees, 1839, 10 A. & E. 155) ; but the detailed application of such a rule as this is better learnt by experience, applied to a firm grasp of prin- ciple, than by an attempt to recollect innumerable cases. The case of Weeks v. Sparke (ante, p. 113) is remarkable for the light it throws on the history of the Law of Evidence. It was decided in 1813, and contains inter alia the follow- ing curious remarks by Lord Ellenborough : " It is stated to be the habit and practice of different circuits to admit this species of evidence upon such a question as the present. That certainly cannot make the law, but it shows at least, from the established practice of a large branch of the pro- fession, and of the judges who have presided at various times on those circuits, what has been the prevailing opin- ion upon this subject amongst so large a class of persons interested in the due administration of the law. It is stated to have been the practice both of the Xorthern and Western Circuits. My learned predecessor, Lord Kenyon, certainly held a different opinion, the practice of the Ox- ford Circuit, of which he was a member, being different." So in the Berkeley Peerage Case, 1811, Lord Eldon said, " When it was proposed to read this deposition as a declara- tion, the Attorney-General (Sir Vicary Gibbs) flatly ob- jected to it. He spoke quite right as a Western Circuiteer, 676 A DIGEST OF of what he had often heard laid down in the West, and never heard doubted " (4 Cam. 20). This shows how very modern much of the Law of Evidence is. Le Blanc, J., in Weeks v. Sparke, says, that a foundation must be laid for evidence of this sort " by acts of enjoyment within living memory." This seems superfluous, as no jury would ever find that a public right of way existed, which had not been used in living memory, on the strength of a report that some deceased person had said that there once was such a right. NOTE XXI. (To Article 31. — Declarations as to Pedigree.) See 1 Ph. Ev. 197-233; Taylor, ss. 635-57; R. N. P. 46-48 ; Phipson, 288-297. The Berkeley Peerage Case, 1811 (Answers of the Judges to the House of Lords), 4 Cam. 401, which estab- lished the third condition given in the text ; and Davies v. Lowndes, 1843, 6 M. & G. 471 (see more particularly pp. 525-9, in which the question of family pedigrees is fully discussed) are specially important on this subject. As to declarations as to the place of birth, &c, see Shields v. Boucher, 1847, 1 De G. & S. 49-58. NOTE XXII. (To Article 32. — Evidence in Former Proceedings.) See also 1 Ph. Ev. 306-8; Taylor, ss. 464-79a; Buller, N. P. 238, and following; Phipson, 419-25. THE LAW OF EVIDENCE. 677 In reference to this subject it has been asked whether this principle applies indiscriminately to all kinds of evi- dence in all cases. Suppose a man were to be tried twice upon the same facts — e. g. for robbery after an acquittal for murder, and suppose that in the interval between the two trials an important witness who had not been called before the magistrates were to die, might his evidence be read on the second trial from a reporter's short-hand notes? This case might easily have occurred if Orton had been put on his trial for forgery as well as for perjury. I should be disposed to think on principle that such evi- dence would be admissible, though I cannot cite any authority on the subject. The common-law principle on which depositions taken before magistrates and in Chan- cery proceedings were admitted seems to cover the case. NOTE XXIII. (To Articles 39-47. — Judgments as Evidence.) The law relating to the relevancy of judgments of Courts of Justice to the existence of the matters which they assert is made to appear extremely complicated by the manner in which it is usually dealt with. The method commonly employed is to mix up the question of the effect of judg- ments of various kinds with that of their admissibility, subjects which appear to belong to different branches of the law. Thus the subject, as commonly treated, introduces into the Law of Evidence an attempt to distinguish between judgments in rem, and judgments in personam or inter 678 A DIGEST OF partes (terms adapted from, but not belonging to, Roman Law, and never clearly defined in reference to our own or any other system) ; also the question of the effect of the pleas of autrefois acquit, and autrefois convict, which clearly belong not to evidence, but to criminal procedure ; the question of estoppels, which belongs rather to the law of pleading than to that of evidence; and the question of the effect given to the judgments of foreign Courts of Jus- tice, which would seem more properly to belong to private international law. These and other matters are treated uf at great length in 2 Ph. Ev. 1-78, and Taylor, ss. 1667- 1723 ; in the note to the Duchess of Kingston s Case, 1776, 2 S. L. C. 726-840; and Phipson, 379-412. Best (ss. 588- 595) treats the matter more concisely. The text is confined to as complete a statement as I could make of the principles which regulate the relevancy of judgments considered as declarations proving the facts which they assert, whatever may be the effect or the use to be made of those facts when proved. Thus the leading principle stated in Article 40 is equally true of all judg- ments alike. Every judgment, whether it be in rem or inter partes, must and does prove what it actually effects, though the effects of different sorts of judgments differ as widely as the effects of different sorts of deeds. There has been much controversy as to the extent to which effect ought to be given to the judgments of foreign Courts in this country, and as to the cases in which the Courts will refuse to act upon them ; but as a mere question of evidence, they do not differ from English judgments. THE LAW OF EVIDENCE. G79 The cases on foreign judgments are collected in the note to the Duchess of Kingston's Case, 2 S. L. C. 765-801. There is a convenient list of the cases in R, 1ST. P. 205-0. The cases of Godard v. Gray, 1870, L. R. 6 Q. B. 139; Cas- trique v. Imrie, 1870, L. R. 4 E. & I. A. 414 ; &?A Noewion v. Freeman, [1889], 15 A. C. 1, are the latest leading cases on the subject. NOTE XXIV. (To Chapter V. — Opinions, when Relevant.) On evidence of opinions, see 1 Ph. Ev. 520-8 ; Taylor, ss. 1416-1425; Best, ss. 511-17; R. K P. 174-5; Phipson, 356-78. The leading case on the subject is Doe r. Tatham, 1837, 7 A. & E. 313 ; and 4 Bing. K C. 489, referred to above in Note VIII. Baron Parke, in the extracts there given, treats an expression of opinion as hearsay, that is. as a statement affirming the truth of the subject-matter of the opinion. NOTE XXV. (To Chapter VI. — Character, when Relevant.) See 1 Ph. Ev. 502-8; Taylor, ss. 349-63; Best, ss. 257- 63; 3 Russ. Cr. 424-8; Phipson, 154-8. The subject is considered at length in B. v. Rowton, 1865, 1 L. & C. 520. One consequence of the view of the subject taken in that case is that a witness may with perfect truth swear that a man, who to his knowledge has been a receiver of stolen goods for years, has an excellent character for honesty, if he has had the good luck to conceal his crimes from his 680 A DIGEST OF neighbours. It is the essence of successful hypocrisy to combine a good reputation with a bad disposition, and ac- cording to R. v. Rowton, the reputation is the important matter. The case is seldom if ever acted on in practice. The question always put to a witness to character is, What is the prisoner's character for honesty, morality, or human- ity ? as the case may be ; nor is the witness ever warned that he is to confine his evidence to the prisoner's reputa- tion. It would be no easy matter to make the common run of witnesses understand the distinction. NOTE XXVI. (To Article 58. — Judicial Notice.) The list of matters judicially noticed in this article i& not intended to be quite complete. It is compiled from 1 Ph. Ev. 458-67, and Taylor, ss. 4-21, where the subject is gone into more minutely. A convenient list is also given in K. 1ST. P. 80-84, which is much to the same effect; see, too, Phipson, 16-24. It may be doubted whether ap absolutely complete list could be formed, as it is prac tically impossible to enumerate everything which is so notorious in itself, or so distinctly recorded by public au- thority, that it would be superfluous to prove it. Para- graph (1) is drawn with reference to the fusion of Law, Equity, Admiralty, and Testamentary Jurisdiction ef- fected by the Judicature Act. THE LAW OF EVIDENCE. 681 NOTE XXVII. (To Article 62. — Oral Evidence must be Direct.) Owing to the ambiguity of the word " evidence," which is sometimes used to signify the effect of a fact when proved, and sometimes to signify the testimony by which a fact is proved, the expression " hearsay is no evidence " has many meanings. Its common and most important meaning is the one given in Article 14, which might be otherwise expressed by saying that the connection between events, and reports that they have happened, is generally so remote that it is expedient to regard the existence of the reports as irrelevant to the occurrence of the events, except in excepted cases. Article 62 expresses the same thing from a different point of view, and is subject to no excep- tions whatever. It asserts that whatever may be the rela- tion of a fact to be proved to the fact in issue, it must, if proved by oral evidence, be proved by direct evidence. For instance, if it were to be proved under Article 31 that A, who died fifty years ago, said that he had heard from his father B, who died 100 years ago, that A's grandfather C had told B that D, C's elder brother, died without issue, A's statement must be proved by some one who, with his own ears, heard him make it. If (as in the case of verbal slander) the speaking of the words was the very point in issue, they must be proved in precisely the same way. Cases in which evidence is given of character and general opinion may perhaps seem to be exceptions to this rule, 682 A DIGEST OF but they are not so. When a man swears that another has a good character, he means that he has heard many people, though he does not particularly recollect what people, speak well of him, though he does not recollect all that they said. NOTE XXVIII. (To Articles 66 & 67. — Proof of Execution of Docu- ment MUST BE ATTESTED.) This is probably the most ancient, and is, as far as it extends, the most inflexible of all the rules of evidence. The following characteristic observations by Lord Ellen- borough occur in R. v. Har ring worth, 1815, 4 M. & S. at p. 353:— " The rule, therefore, is universal that you must first call the subscribing witness ; and it is not to be varied in each particular case by trying whether, in its application, it may not be productive of some inconvenience, for then there would be no such thing as a general rule. A lawyer who is well stored with these rules would he no better than any other man that is without them, if by mere force of speculative reasoning it might be shown that the applica- tion of such and such a rule would be productive of such and such an inconvenience, and therefore ought not to prevail; but if any general rule ought to prevail, this is certainly one that is as fixed, formal, and universal as any that can be stated in a Court of Justice." In AYhyman v. Garth, 1853, 8 Ex. at p. 807, Pollock, C.B., said, " The parties are supposed to have agreed inter TEE LAW OF EVIDENCE. 683 se that the deed shall not be given in evidence without hi3 [the attesting witness] being called to depose to the circum- stances attending its execution." In very ancient times, when the jury were witnesses a8 to matter of fact, the attesting witnesses to deed (if a deed came in question) would seem to have been summoned with, and to have acted as a sort of assessors to, the jury. See as to this, Bracton, fo. 38a; Fortescue, De Laudibus, ch. xxxii. with Selden's note ; and cases collected from the Year-books in Brooke's Abridgement, tit. Testmoignes. For the present rule, and the exceptions to it, see 2 Ph. Ev. 242-61 ; Taylor, ss. 1839-1844; K. K P. 131-34; Best, ss. 220, &c. ; Phipson, 490-95. The old rule which applied to all attested documents was restricted to those required to be attested by law, by 17 & 18 Vict. c. 125, s. 26, replaced by 28 & 29 Vict. c. 18, ss. 1 & 7, and now repealed by S. L. R. Act, 1892. NOTE XXIX. (To Article 72. — Notice to produce.) For these rules in greater detail, see 1 Ph. Ev. 452-3, and 2 Ph. Ev. 272-89; Taylor, ss. 449-56; R. X. P. 7-M ; Phipson, 507-8. The principle of all the rules is fully explained in the cases cited in the foot-notes, more particularly in Dwyer v. Collins, 1852, 7 Ex. 639. In that case it is held that the object of notice to produce is " to enable the parry to have the document in Court, and if he does not, to enable 684 A DIGEST OF his opponent to give parol evidence ... to exclude the argu- ment that the opponent has not taken all reasonable means to procure the original, which he must do before he can be permitted to make use of secondary evidence " (pp. 647-8). NOTE XXX. (To Article 75. — Public Documents; Examined Copies.) Mr. Philips (2, 196) says, that upon a plea of mil tiel record, the original record must be produced if it is in the same Court. Mr. Taylor (s. 1535) says, that upon prosecutions for perjury assigned upon any judicial document the original must be produced. The authorities given seem to me hardly to bear out either of these statements. They show that the production of the original in such cases is the usual course, but not, I think, that it is necessary. The case of Lady Dartmouth v. Roberts, 1812, 16 Ea. 334, is too wide for the proposition for which it is cited. The matter, how- ever, is of little practical importance. NOTE XXXI. (To Articles 77 & 78. — Public Documents; Exem- plifications.) The learning as to exemplifications and office-copies will be found in the following authorities : Gilbert's ' Law of Evidence,' 11-20; Buller, 'Nisi Prius,' 228, and follow- ing; Starkie, 256-66 (fully and very conveniently) ; 2 Ph. THE LAW OF EVIDENCE. 685 Ev. 196-200; Taylor, ss. 1536-1542; R. K P. 96-102. The second paragraph of Article 77 is founded on Appleton v. Braybroolc, 1817, 6 M. & S. at p. 39. As to exemplifications not under the Great Seal, it is remarkable that the Judicature Acts give no seal to the Supreme Court, or the High Court, or any of its divisions. NOTE XXXII. {To Article 90. — Documents Exclusive Evidence.) The distinction between this and the following article is, that Article 90 defines the cases in which documents are exclusive evidence of the transactions which they embody, while Article 91 deals with the interpretation of documents by oral evidence. The two subjects are so closely con- nected together, that they are not usually treated as dis- tinct; but they are so in fact. A and B make a contract of marine insurance on goods, and reduce it to writing. They verbally agree that the goods are not to be shipped in a particular ship, though the contract makes no such reser- vation. They leave unnoticed a condition usually under- stood in the business of insurance, and they make use of a technical expression, the meaning of which is not com- monly known. The law does not permit oral evidence to be given of the exception as to .the particular ship. It does permit oral evidence to be given to annex the condition; and thus far it decides that for one purpose the document shall, and that for another it. shall not, be regarded as exclusive evidence of the terms of the actual agreement 686 A DIGEST OF between the parties. It also allows the technical term to be explained, and in doing so it interprets the meaning of the document itself. The two operations are obviously different, and their proper performance depends upon dif- ferent principles. The first depends upon the principle that the object of reducing transactions to a written form is to take security against bad faith or bad memory, for which reason a writing is presumed as a general rule to embody the final and considered determination of the par- ' ties to it. The second depends on a consideration of the imperfections of language, and of the inadequate manner in which people adjust their words to the facts to which they apply. The rules themselves are not, I think, difficult either to state, to understand, or to remember ; but they are by no means easy to apply, inasmuch as from the nature of the case an enormous number of transactions fall close on one side or the other of most of them. Hence the exposition of these rules, and the abridgment of all the illustrations of them which have occurred in practice, occupy a very large space in the different text writers. They will be found in 2 Ph. Ev. 332-424; Taylor, ss. 1128-1228; Star. 648-731; Best (very shortly and imperfectly), ss. 226-9; R. 1ST. P. (an immense list of cases), 16-33; Phipson, 528-75. As to paragraph (4), which is founded on the case of Goss v. Lord Nugent, it is to be observed that the para- graph is purposely so drawn as not to touch the question of the effect of the Statute of Frauds. It was held in effect in Goss v. Lord Nugent that if by reason of the Statute of THE LAW OF EVIDENCE. C87 Frauds the substituted contract could not be enforced, it would not have the effect of waiving part of the original contract ; but it seems the better opinion that a verbal res- cission of a contract good under the Statute of Frauds would be good. See Noble v. Ward, 1867, L. R. 2 Ex. 135, and Pollock on 'Contracts' (6th ed.), 235, note (i). A contract by deed can be released only by deed, and this case also would fall within the proviso to paragraph (4). The cases given in the illustrations will be found to mark sufficiently the various rules stated. As to paragraph (5), a very large collection of cases will be found in the notes to Wigglesworth v. Dallison, 1779, 1 S. L. C, 535- 60, but the consideration of them appears to belong rather to mercantile law than to the Law of Evidence. For instance, the question what stipulations are consistent with, and what are contradictory to, the contract formed by sub- scribing a bill of exchange, or the contract between an in- surer and an underwriter, are not questions of the Law of Evidence. NOTE XXXIII. (To Article 91. — Oral Interpretation of Docu- ments.) Perhaps the subject-matter of this article does not fall strictly within the Law of Evidence, but it is generally con- sidered to do so ; and as it ha? always been treated as a branch of the subject, I have thought it best to deal with it. The general authorities for the propositions in the text are the same as those specified in the last note; but the 688 A DIGEST OF great authority on the subject is the work of Vice-Chan- cellor Wigram on ' Extrinsic Evidence.' Article 91, in- deed, will be found, on examination, to differ from the six propositions of Vice-Chancellor Wigram only in its ar- rangement and form of expression, and in the fact that it is not restricted to wills. It will, I think, be found, on examination, that every case cited by the Vice-Chancellor might be used as an illustration of one or the other of the propositions contained in it. It is difficult to justify the line drawn between the rule as to cases in which evidence of expressions of intention is admitted and cases in which it is rejected (paragraph 7, illustrations (k), (I), (m), and paragraph 8, illustrations (n)and (o) ). When placed side by side, such cases as Doe v. Hiscocks (illustration (k)) and Doe v. Needs (illustra- tion (n)) produce a singular effect. The vagueness of the distinction between them is indicated by the case of Charter v. Charter, 1871, L. K. 2 P. & M, 315. In this case the testator Forster Charter appointed " my son Forster Charter " his executor. He had two sons, William Forster Charter and Charles Charter, and many circum- stances pointed to the conclusion that the person whom the testator wished to be his executor was Charles Charter. Lord Penzance not only admitted evidence of all the cir- cumstances of the case, but expressed an opinion (p. 319) that, if it were necessary, evidence of declarations of in- tention might be admitted under the rule laid down by Lord Abinger in Hiscocks v. Hiscocks, because part of the language employed ("my son Charter") applied THE LAW OF EVIDENCE. 689 correctly to each son, and the remainder, " Forster," to neither. This mode of construing the rule would admit evidence of declarations of intention both in cases falling under paragraph 8, and in cases falling under paragraph 7, which is inconsistent not only with the reasoning in the judgment, but with the actual decision in Doe v. HiscocJcs. It is also inconsistent with the principles of the judgment in the later case of Allgood v. Blake, 1873, L. R. 8 Ex. 160, where the rule is stated by Blackburn, J., as follows: " In construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and cir- cumstances which were (or ought to have been) in the mind of the testator when he used those words." After quoting Wigram on ' Extrinsic Evidence,' and Doe v. Mis- cocks, he adds : " No doubt, in many cases the testator has, for the moment, forgotten or overlooked the material facts and circumstances which he well knew. And the conse- quence sometimes is that he uses words which express an intention which he would not have wished to express, and would have altered if he had been reminded of the facts and circumstances. But the Court is to construe the will as made by the testator, not to make a will for him; and therefore it is bound to execute his expressed intention, even if there is great reason to believe that he has by blunder expressed what he did not mean." The part of 44 690 A DIGEST OF Lord Penzance's judgment above referred to was unani- mously overruled in the House of Lords ; though the Court, being equally divided as to the construction of the will, re- fused to reverse the judgment, upon the principle prce- sumitur pro negante. Conclusive as the authorities upon the subject are, it may not, perhaps, be presumptuous to express a doubt whether the conflict between a natural wish to fulfil the intention which the testator would have formed if he had recollected all the circumstances of ihe case ; the wish to avoid the evil of permitting written instruments to be varied by oral evidence ; and the wish to give effect to wills, has not produced in practice an illogical compromise. The strictly logical course, I think, would be either to admit declarations of intention both in cases falling under para- graph 7, and in cases falling under paragraph 8, or to ex- clude such evidence in both classes of cases, and to hold void for uncertainty every bequest or devise which was shown to be uncertain in its application to facts. Such a decision as that in Stringer v. Gardiner (see illustration (m)), the result of which was to give a legacy to a person whom the testator had no wish to benefit, and who was not either named or described in his will, appears to me to be a practical refutation of the principle or rule on which it is based. Of course every document whatever must to some extent be interpreted by circumstances. However accurate and detailed a description of things and persons may be, oral evidence is always wanted to show that persons and things THE LAW OF EVIDENCE. «91 answering the description exist ; and therefore in every case whatever, every fact must be allowed to be proved to which the document does, or probably may, refer; but if more evidence than this is admitted, if the Court may look at circumstances which affect the probability that the tes- tator would form this intention or that, why should declara- tions of intention be excluded? If the question is, " "What did the testator say ? " why should the Court look at the circumstances that he lived with Charles, and was on bad terms with William ? How can any amount of evidence to show that the testator intended to write " Charles " show that what he did write means " Charles " ? To say that " Forster " means " Charles," is like saying that " two " means " three." If the question is " What did the testator wish ? " why should the Court refuse to look at his declara- tions of intention ? And what third question can be asked ? The only one which can be suggested is, " What would the testator have meant if he had deliberately used un- meaning words ? " The only answer to this would be, he would have had no meaning, and would have said nothing, and his bequest should be pro tanto void. NOTE XXXIV. (To Article 92. — Evidence by Strangers to Docu- ments.) See 2 Ph. Ev. 364; Star. 726; Taylor (from Green- leaf), ss. 1149, Phipson, 533. Various cases are quoted by these writers in support of the first part of the proposition in the article; but R. v. Cheadle is the only one which G92 A DIGEST OF appears to me to come quite up to it. They are all settle- ment cases. NOTE XXXV. (To Chapter XIII. — Production and Effect of Evidence.) In this and the following chapter many matters usually introduced into treatises on evidence are omitted, because they appear to belong either to the subject of pleading, or to different branches of Substantive Law. For instance, the rules as to the burden of proof of negative averments in criminal cases (1 Ph. Ev. 555, &c. ; 3 Euss. on Cr. 400- 403) belong rather to criminal procedure than to evidence. Again, in every branch of Substantive Law there are pre- sumptions more or less numerous and important, which can be understood only in connection with those branches of the law. Such are the presumptions as to the ownership of property, as to consideration for a bill of exchange, as to many of the incidents of the contract of insurance. Pass- ing over all these, I have embodied in Chapter XIV. those presumptions only which bear upon the proof of facts likely to be proved on a great variety of different occasions, and those estoppels only which arise out of matters of fact, as distinguished from those which arise upon deeds or judgments. TEE LAW OF EVIDENCE. 693 NOTE XXXVI. (To Article 94. — Presumption of Innocence.) The presumption of innocence belongs principally to the Criminal Law, though it has, as the illustrations show, a bearing on the proof of ordinary facts. The question, " What doubts are reasonable in criminal cases ? " belongs to the Criminal Law. NOTE XXXVII. (To Article 101. — " Omnia Rite Acta.") The first part of this article is meant to give the effect of the presumption, omnia esse rite acta, 1 Ph. Ev. 480, &c. ; Taylor, ss. 139, &c. ; Best, s. 353, &c. This, like all pre- sumptions, is a very vague and fluid rule at best, and is applied to a great variety of different subject-matters. NOTE XXXVIII. (To Articles 102-105. — Estoppels in Pais.) These articles embody the principal cases of estoppels in pais, as distinguished from estoppels by deed and by record. As they may be applied in a great variety of ways and to infinitely various circumstances, the application of these rules has involved a good deal of detail. The rules them- selves appear clearly enough on a careful examination of the cases. The latest and most extensive collection of cases is to be seen in 2 S. L. C. 808-40, where the cases referred €94 A DIGEST OF to in the text and many others are abstracted. See, too, 1 Ph. Ev. 350-3; Taylor, ss. 101-3, 776, 778; Best, s. 543; Phipson, 584-8. Article 102 contains the rule in Pickard v. Bears, 1837, 6 A. & E. at p. 474, as interpreted and limited by Parke, B., in Freeman v. Cooke, 1848, 2 Ex. 654, 663. The second paragraph of the article is founded on the application of this rule to the case of a negligent act causing fraud. The rule, as expressed, is collected from a comparison of the fol- lowing cases: Bank of Ireland v. Evans, 1855, 5 H. L. Ca. 389 ; Swan v. North British Australasian Company, which was before three Courts, see 1859, 7 C. B. (X.S.), 400 ; 1862, 7 H. & N. 603 ; 1863, 2 H. & C. 175, where the judgment of the majority of the Court of Exchequer was reversed; and Halifax Guardians v. Wheelwright, 1875, L. R. 10 Ex. 183, in which all the cases are referred to. All of these refer to Young v. Grote, 1827, 4 Bing. 253, and its authority has always been upheld, though not al- ways on the same ground. The rules on this subject are stated in general terms in Carr v. L. & N. W. Railway, 1875, 10 C. P. 316-17. It would be difficult to find a better illustration of the gradual way in which the judges construct rules of evi- dence, as circumstances require it, than is afforded by a study of these cases. THE LAW OF EVIDENCE. G95 NOTE XXXIX. (To Chapter XV. — Competency of Witnesses.) The law as to the competency of witnesses war formerly the most, or nearly the most, important and extensive branch of the Law of Evidence. Indeed, rules as to the incompetency of witnesses, as to the proof of documents, and as to the proof of some particular issues, are nearly the only rules of evidence treated of in the older authorities. Great part of Bentham's ' Kationale of Judicial Evidence ' is directed to an exposure of the fundamentally erroneous nature of the theory upon which these rules were founded ; and his attack upon them has met with a success go nearly complete that it has itself become obsolete. The history of the subject is to be found in Mr. Best's work, book ii. part i. ch. ii. ss. 132-88. See, too, Taylor, ss. 1342-1393, and K. N. P. 160-4. As to the old law, see 1 Ph. Ev. 5 et seq., 104. NOTE XL. (To Article 107. — What Witnesses Incompetent.) The authorities for the first paragraph are given at great length in Best, ss. 146-65. See, too, Taylor, s. 1375; Phipson, 436-8. As to paragraph 2, see Best, s. 148; 1 Ph. Ev. 7 ; 2 Ph. Ev. 457 ; Taylor, s. 1376. 696 A DIGEST OF NOTE XLI. (To Article 108. — Competency in Criminal Cases.) At Common Law the parties and their husbands and wives were incompetent in all cases. This incompetency was removed as to the parties in civil, but not in criminal cases, by 14 & 15 Vict. c. 99, s. 2; and as to their husbands and wives, by 16 & 17 Vict. c. 83, ss. 1, 2. But sect. 2 expressly reserved the Common Law as to criminal cases and proceedings instituted in consequence of adultery. The words relating to adultery were repealed by 32 & 33 Vict. c. 68, s. 3, which is the authority for Article 109. Persons interested and persons who had been convicted of certain crimes were also incompetent witnesses, but their incompetency was removed by 6 & 7 Vict. c. 85. Various modern statutes mentioned in Note 1, p. 289,. made an accused person and his or her wife or husband competent witnesses in various cases, and now the Crim- inal Evidence Act, 1898, has removed their incompetency to the extent mentioned in the text. The law on the sub- ject cannot, however, be correctly stated without reference to the old Common Law Rule. NOTE XLII. (To Article 111. — Privilege of Judges and Wit- nesses.) The cases on which these articles are founded are only Nisi Prius decisions: but as they are quoted by writers of THE LAW OF EVIDENCE. 697 eminence (1 Ph. Ev. 139; Taylor, s. 938), I have referred to them. In the trial of Lord Thanet, for an attempt to rescue Arthur O'Connor, Serjeant Shepherd, one of the special commissioners, before whom the riot took place in court at Maidstone, gave evidence, R. v. Lord Thanet, 1799, 27 S. T. at p. 836. I have myself been called as a witness on a trial for perjury to prove what was said before me when sitting as an arbitrator. The trial took place before Mr. Justice Hayes at York, in 1869. See, however, Article 123b. As to the case of an advocate giving evidence in the course of a trial in which he is professionally engaged, see several cases cited and discussed in Best, ss. 184-6. In addition to those cases, reference may be made to the trial of Home Tooke for a libel in 1777, when he proposed to call the Attorney-General (Lord Thurlow), 20 S. T. at rj. 740. These cases do not appear to show more than that, as a rule, it is for obvious reasons improper that those who conduct a case as advocates should lie called as witnesses in it. Cases, however, might occur in which it might be absolutely necessary to do so. For instance, a solicitor engaged as an advocate might, not at all improb- ably, be the attesting witness to a deed or will. NOTE XLIII. (To Article 115. — Professional Communications.) This article sums up the rule as to professional commu- nications, every part of which is explained at great length. 698 A DIGEST OF and to much the same effect, 1 Ph. Ev. 105-122 ; Taylor, ss. 911-18a; Best, s. 581. See, too, Phipson, 181-91. It is so well established and so plain in itself that it requires only negative illustrations. It is stated at length by Lord Brougham in Greenough v. G ask ell, 1833, 1 M. & K. 98. The last leading case on the subject is R. v. Cox and Railton, 1884, 14 Q. B. D. 153. Leges Henrici Primi, v. 17: "Caveat 3acerdos ne de hiis qui ei confitentur peccata alicui recitet quod ei conf essus est, non propinquis, non extraneis. Quod si fecerit deponetur et omnibus diebus vitse suse ignominiosus peregrinando poeniteat." 1 M. 508. NOTE XLIV. (To Article 117. — Privilege of Clergymen and Priests.) The question whether clergymen, and particularly whether Roman Catholic priests, can be compelled to dis- close confessions made to them professionally, has never been solemnly decided in England, though it is stated by the text writers that they can. See 1 Ph. Ev. 109 ; Taylor, ss. 916-17; R. K P. 171; Starkie, 40. The question is discussed at some length in Best, ss. 583-4; and a pamphlet was written to maintain the existence of the privilege by Mr. Baddeley in 1865. Mr. Best shows clearly that none of the decided cases are directly in point, except Butler v. Moore, 1802, MacXally, 253-4, and possibly R. v. Sparkes, which was cited by Garrow in arguing Du Barre v. Livette before Lord Kenyon, 1791, 1 Pea. 108. The report of his TEE LAW OF EVIDENCE. C99 argument is in these words : " The prisoner being a Papist, had made a confession before a Protestant clergyman of the crime for which he was indicted; and that confession was permitted to be given in evidence on the trial " (before Buller, J.) ; " and he was convicted and executed." The report is of no value, resting as it does on Peake's note of Garrow's statement of a case in which he was probably not personally concerned; and it does not appear how the ob- jection was taken, or whether the matter was ever argued. Lord Kenyon, however, is said to have observed: "I should have paused before I admitted the evidence there admitted." Mr. Baddeley's argument is in a few words, that the privilege must have been recognised when the Roman Catholic religion was established by law, and that it has never been taken away. I think that the modern Law of Evidence is not so old as the Reformation, but has grown up by the practice of the Courts, and by decisions in the course of the last two centuries. It came into existence at a time when excep- tions in favour of auricular confessions to Roman ( Jatholic priests were not likely to be made. The general rule 19 that every person must testify to what he knows. An exception to the general rule has been established in regard to legal advisers, but there is nothing to show that it extends to clergymen, and it is usually so .-rated as not to include them. This is the ground on which the Irish Mas- ter of the Rolls (Sir Michael Smith) decided the case of Butler v. Moore, supra. It was a demurrer to a rule to 700 A DIGEST OF administer interrogatories to a Roman Catholic priest as to matter which he said he knew, if at all, professionally only. The judge said, " It was the undoubted legal con- stitutional right of every subject of the realm who has a cause depending, to call upon a fellow-subject to testify what he may know of the matters in issue; and every man is bound to make the discovery, unless specially exempted and protected by law. It was candidly admitted that no special exemption could be shown in the present instance, and analogous cases and principles alone were relied upon." The analogy, however, was not considered suffi- ciently strong. Several judges have, for obvious reasons, expressed the strongest disinclination to compel such a disclosure. Thus Best, C. J., said, " I, for one, will never compel a clergy- man to disclose communications made to him by a pris- oner; but if he chooses to disclose them I shall receive them m evidence " (obiter, in Broad v. Pitt, 1828, 3 C. & P. 518). Alderson, B., thought (rather it would seem as a matter of good feeling than as a matter of positive law) that snch evidence should not be given. R. v. Griffin, 1853, 6 Cox, Cr. Ca. 219. NOTE XLIVa. (To Article 123a. — Unsworn Evidence, Relevancy of.) In R. v. lYealand, 1888, 20 Q. B. D. 827, the indict- ment, under the Criminal Law Amendment Act, s. 4 r charged the prisoner with carnally knowing a girl under THE LAW OF EVIDENCE. 701 13. The child, under the same section, gave evidence without being sworn. The jury acquitted the prisoner of carnally knowing the child, and found him guilty of inde- cent assault. The conviction was affirmed, though on a charge of indecent assault the unsworn evidence would have been inadmissible, and though the evidence apart from the child's statement was insufficient to support a conviction. The ground of the decision was that sect. 4 of the Act made the unsworn evidence admissible, and sect. 9 made the verdict lawful. Lord Coleridge, C.J., described the result as " an anomaly," and as showing " an unsatisfactory state of the law." In R. v. Paul, 1890, 25 Q. B. D. 202, the indictment was in two counts, one under sect. 4 of the Criminal Law Amendment Act, 1885, charging an attempt to have carnal knowledge of a girl under thirteen, and the other charging indecent assault. Under sect. 4 the child gave evidence without being sworn. The other evidence was insufficient to support a convic- tion, but contributed material corroboration of the unsworn statement. The jury acquitted the prisoner (by the direction of the judge) on the first count, and found him guilty, on the second, of indecent assault. The con- viction was quashed on the ground that, on the substantial count for indecent assault, not being a charge under s. 4 of the Criminal Law Amendment Act, the unsworn evi- dence of the child was inadmissible. The judgment of the Court (delivered by Hawkins, J., and concurred in by Lord Coleridge, C.J., and Mathew, Day, and Grantham, JJ.) distinguished B. v. Wealand on the ground that there 702 A DIGEST OF the verdict was returned, as by law it could be, upon a count (under s. 4) upon which the unsworn evidence was admissible. In this judgment "the law created by the Statute " was said to be " in a very unsatisfactory state." It is clear that the two cases cannot be reconciled upon a satisfactory principle, and that, both being authoritative, the admissibility of the unsworn evidence depends in such cases upon the form of the indictment. It is to be observed that since the passing of the Prevention of Cruelty to Children Act, 1894, (57 & 58 Vict. c. 41, s. 15, & Schedule), if the indecent assault were an " offence in- volving bodily injury " to the child, it might be argued that the unsworn statement of the child was admissible, not under the Criminal Law Amendment Act, 1885, but under the Prevention of Cruelty to Children Act. It seems probable, however, that the words " offence involv- ing bodily injury " mean an offence necessarily involving bodily injury, which indecent assault could hardly be said to be. If an indictment for having carnal knowledge of a girl under thirteen in one count were so drawn as to comprise — as it very well might — an allegation that the prisoner indecently assaulted the child, it would seem that R. v. Wealand would make the child's unsworn testimony admissible, and that in the event of a conviction for inde- cent assault B. v. Paul would not apply. THE LAW OF EVIDENCE. 703 NOTE XLY. (To Articles 126, 127, 128. — Examination, etc., of Witnesses.) These articles relate to matters almost too familiar to require authority, as no one can watch the proceedings of any Court of Justice without seeing the rules laid down in them continually enforced. The subject is discussed at length in 2 Ph. Ev. pt. 2, chap. x. p. 456, &c; Taylor, s. 1394, &c; Phipson, 467-80; see, too, Best, s. 631, &c. In respect to leading questions, it is said, " It is entirely a question for the presiding judge whether or not the exam- ination is being conducted fairly." E. ~N. P. 165. NOTE XLVI. (To Article 129. — Limits of Cross-examination.) This article states a practice which is now common, and which never was more strikingly illustrated than in the case referred to in the illustration. But the practice which it represents is modern; and I submit that it requires the qualification suggested in the text. I shall not believe, unless and until it is so decided upon solemn argument, that by the law of England a person who is called to prove a minor fact, not really disputed, in a case of little impor- tance, thereby exposes himself to having every transaction of his past life, however private, inquired into by persons rot A DIGEST OF who may wish to serve the basest purposes of fraud or re- venge by doing so. Suppose, for instance, a medical man were called to prove the fact that a slight wound had been inflicted, and had been attended to by him, would it be lawful, under pretence of testing his credit, to compel him to answer upon oath a series of questions as to his private affairs, extending over many years, and tending to expose transactions of the most delicate and secret kind, in which the fortune and character of other persons might be in- volved? If this is the law, it should be altered. The fol- lowing section of the Indian Evidence Act (1 of 872) may perhaps be deserving of consideration. After authorising, in sect. 147, questions as to the credit of the witness the Act proceeds as follows in sect. 148: — "If any such question relates to a matter not relevant to the suit or proceeding, except so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if he thinks fit, warn the witness that he is not obliged to answer it. In exercising this discretion, the Court shall have regard to the following considera- tions: — "(1) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies. "(2) Such questions are improper if the imputation which they convey relates to matters so remote in time or TEE LAW OF EVIDENCE. 705 of such a character that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies. "(3) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence." Order XXXVI., rule 38, expressly gives the judge a discretion which was much wanted, and which I believe he always possessed. NOTE XLVII. (To Article 131. — Statements Inconsistent with Present Testimony.) The contents of this section are intended to represent sects. 3 and 4 of the Criminal Procedure Act, 1865, 28 & 29 Vict. c. 18, which re-enacted sects. 22 and 23 of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, now repealed by the Statute Law Revision Act, 1892. The two sections in question are as follows: — 3. A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to dee- 45 roe A DIGEST OF ignate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. 4. If a witness, upon cross-examination as to a former statement made by him relative to the subject-matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given, the cir- cumstances of the supposed statement, sufficient to desig- nate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. The sections are obviously ill-arranged; but apart from this, s. 3 is so worded as to suggest a doubt whether a party to an action has a right to contradict a witness called by himself whose testimony is adverse to his interests. The words "he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evi- dence," suggest that he cannot do so unless the judge is of that opinion. This is not, and never was, the law. In Greenough v. Eccles, 1859, 5 C. B. (N.S.), at p. 802, Williams, J., says; "The law was clear that you might not discredit your own witness by general evidence of bad character; but you might, nevertheless, contradict him by other evidence relevant to the issue;" and he adds, at p. S03: "It is impossible to suppose that the Legislature could have really intended to impose any fetter whatever on the right of a party to contradict his own witness by other evi- THE LAW OF EVIDENCE. dence relevant to the issue — a right not only established by authority, but founded on the plainest good sense." Cockburn, L.C.J., in the same case, at p. 806, said of the 22nd section of the Common Law Procedure Act, 1854: "There has been a great blunder in the drawing of it, and on the part of those who adopted it. . . . Perhaps the better course is to consider the second branch of the section as altogether superfluous and useless (p. 806)." On this authority I have omitted it. For many years before the Common Law Procedure Act of 1854 it was held, in accordance with Queen Caro- line's Case, 1820, 2 Br. & Bing. 2S6-91, that a witness could not be cross-examined as to statements made in writing, unless the writing had been first proved. Tho effect of this rule in criminal cases was that a witness could not be cross-examined as to what he had said before the magistrates without putting in his deposition, and this gave the prosecuting counsel the reply. Upon this subject rules of practice were issued by the judges in 1837, when the Prisoners Counsel Act came into operation. The rules are published in 7 C. & P. 676. They would appear to have been superseded by the 28 Vict. c. 18. NOTE XLVIII. The Statute Law relating to the subject of evidence may be regarded either as voluminous or not, according to the view taken of the extent of the subject. The number of statutes classified under the head [The numbers refer to pages.] Pedigree — Continued time of making, 185 ante litem motum, 188, 190 family conduct 188 family Bible, 188, 189, 191 recognition by kinsmen, 189 legitimacy, 189, 190 form of declaration, 191 Penalty, compelling production of documents, 559-561 oral evidence to explain the term, 452 privilege of witness,, 562-567 Percolating waters, no presumption of grant arises, 502, 503 Perjury, corroboration required, 573, 574 disqualification on conviction of, 531 Person, compelling examination of, 337, 338 Personal custom, 40 status, judgments conclusive, 222-224, 237 Persons concluded by a judgment, 231, 233 deceased, declarations by, 154-198 having joint interest, admissions by, 118-131 in authority, confessions to, 142-150 jointly indicted, 533-540 referred to by party, admissions by, 134, 135 Petty jurors, competency of, 548-550 Photographers as experts, 269 Photographic copies of handwriting, 291, 294 Photographs, 210, 213, 336, 337, 339-342 as secondary evidence, 337 to prove identity, 342 when primary evidence, 344, 346 Physical condition, opinion evidence, 259, 261 examination, 336-340 objects as evidence, 6 Physicians, privileged communications, 559 expert evidence, 272, 277, 297, 281 Physician's record, 166 Place of birth, death, etc., 187, 189 Plaintiff, burden of proof on. 460-467 Pleadings, admissions in. 106, 332, 333 Positive and negative evidence, 11 746 INDEX. [The numbers refer to pages.] Possession of deed, evidence of delivery, 414 of land under deeds thirty years old, 417, 419 of stolen goods, 76-86 to prove title, 34-37, 506 to raise presumption of grant, 500 Post-office records, 201 Practical construction of documents by the parties, 451, 454 Preliminary hearings, evidence at, 193, 198 inquiries of a witness, 15 negotiations, oral evidence of, to alter writing, 436, 442 Preparation to commit an act, 41-48 Preponderance of the evidence, proof by, 463, 470-472, 475 Presumption defined, 4, 5 of law and of fact, 7, 11, 475 as to order of dying in accidents, 497 as to death without issue, 500 of death from seven years' absence, 497 of deeds to complete title, 504 of gift, 508 of honesty, 508 of innocence, 468-472, 693 of legitimacy, 493 of lost grant, 500 of marriage, opinions, 295 of regularity of official acts, 504, 693 of sanity, 508 that debt is paid after lapse of time, 475, 478 that existing state continues, 477 that one intends the natural result of his acts, 508 that witnesses are competent, 520 Presumptions, xxiii of fact and of law, 11 as to documents, 410-424 as to date, 410-412 as to stamp, 413 as to sealing and delivery of deeds, 413-415 as to documents thirty years old, 415-419 as to alterations, 419-424 arising from lapse of time, 504-510 of payment, 507-510 INDEX. 747 [The numbers refer to pages.] Prevention of cruelty to children, corroboration required, 567-571 Previous conviction to shake credit of witness, G04-607 contradicting answers of witness, 609-612 Previous statements in writing, cross-examination, 620, 621 Price lists, 214 Prices-current, 213 Priest and parishioner, burden of proof, 490 Prima facie case, proof required, 479 Prima facie evidence, 7 Primary evidence of the contents of documents, xxi, 343-351 Principal and agent, burden of proof, 490, 491 Principal and surety, admissions of, 119, 123, 125, 131, 133 Printed copies, when primary evidence, 344, 346, 351 Printed laws, 215, 216, 389 Printers' copies, 403 Private boundaries, 182-184 Privies in law, blood, or estate, admissions by. 1 10-118 Privilege of client as to communications to attorney, 557, 558 of judges and attorneys, 544-546 of judges and witnesses, 696 of clergymen and priests, 698 of witness, criminating questions, 562-567 of witness, discretion of the court, 562-567 Privileged communications between attorney and client, 550-558 between husband and wife, 541-544 to clergymen, 559 to physicians, 559 jurors, 548-550 to prosecuting attorneys, 547 as to affairs of State, 546 Privileged documents in hands of attorney or trustee, 561, 562 Prize court, judgment of, 221 Probable cause, evidence of character to show lack of, 304 Procedure of courts, judicial notice, 315 Proclamations, 199, 200, 404 Production and effect of evidence, 460, 692 Production of documents which another person, having possession, could refuse to produce, 561, 562 748 INDEX. [The numbers refer to pages.] Production — Continued of objects and persons, 330-340 of person before the jury, 337, 340 Professional communications, 550-550, 097 duty, declarations in course of, 101-170 time when made, 163, 104, 169 Promise of secrecy, confessions obtained by, 152-154 Prosecuting attorney privileged as to sources of information, 547 Provincial expressions, oral evidence to interpret, 444 Public agents, admissions by, 124 Public and general rights, declarations as to, 180-184 defined, ISO when relevant, 180 maps, 181, 182, 184 boundaries, 182-184 Public documents, 384-409, 684 production of document itself, 3S5-388 examined copies, 388-390 general records of the realm, 390 exemplifications, 391-393 copies equivalent to exemplifications, 394 certified copies, 394—403 admissible throughout the King's dominions, 403 King's printers' copies, 403 Irish statutes, 404 proclamations, orders in council, etc., 404 foreign and colonial acts of State, judgments, etc., 407 answers of Secretary of State as to foreign jurisdiction, 409 Public facts, judicial notice of, 321, 322 recitals of, 199, 200 Public history, judicial notice, 322 Public officers, judicial notice of, 320 Public records, entries in, 200-208 Published laws, 203 Purpose on leaving home, 56 Qualification of an expert, 207, 270, 271, 272. 277, 282 Questions lawful on cross-examination, 604-609 leading. 600-603 testing veracity, contradicting answers to. 609-612 INDEX. WJ [The numbers refer to pages.] Railway experts, 273 Rape, burden of proof, 471 character of the complainant, 308, 310 character of defendant, 309 character of prosecutrix for chastity, 629-631 complaint of female, 660 corroboration necessary, 571 declarations of prosecutrix, 340 fact of complaint made, 49-58 Real evidence, 12 Reasonable doubt, good character to raise a, 310 proof beyond a, 468-472 Rebuttal, 593 explanatory evidence in, 60, 63, 64 of incompetent evidence, 1 1 Rebutting evidence, 8 Recalling witness for further examination, 585-595 Receipts as evidence of payment, 507 for money paid, as declarations against interest, 173 oral evidence to contradict or alter, 431, 434, 439, 442 thirty years old, 417, 418 Receiving stolen goods, other acts, 76-86 Recitals of public facts in statutes and proclamations, 199, 200 Recollection, refreshing, 632-638 Record of baptism, 201, 206, 208 of an instrument as primary evidence, 346 Records, contents, how proved, 348 of a court, 387 exemplifications, 393 certified copies, 397, 401 of other States, certified copies, 398 oral evidence to vary, 443 thirty years old, 416 Re-examination, 585-600 limits of, 596-600 Reformation of a contract, oral evidence to show mistake, 426. 428 of instrument, corroboration required, 570 Refreshing memory, 632-638 right of adverse party to the writing used, 638 750 INDEX. [The numbers refer to pages.] Refusal to answer questions, 16 to produce document, party barred from introducing it, 640 Register of baptisms, 162, 166, 201, 206, 208 of births, marriages, and burials, 202, 205, 208, Regularity of official acts presumed, 504 Relation of parties, 58-64 Relationship, declarations as to, 184-191 not to be proved by proof of personal resemblance, 190 Relatives, admissions by, 125 Relevancy, test of, 14 distinguished from proof, xvii theory of, 654 Relevant defined, 4, 6 Relevant evidence, 13-20 to prove fraud, 18. 19 to prove insanity, 18 to prove forgery, 18 in rebuttal, 18 assurance of counsel, 9, 18, 19 instances of, 19 judge's discretion, if bearing is remote, 13 Relevant facts illustrated, 6 Religious exhortation, confession obtained by, 146 Remote evidence, 14, 16, 17 Reopening the case, 590, 591, 595 Repairs as evidence of negligence, 44, 47, 48 Representatives, admissions by, 110-118 Reputation, 301-313 generally irrelevant. 301-305 in criminal cases, 305-310 as affecting damages, 310-313 as to chastity, 302-305. 308-310, 313 in civil proceedings, 301, 302, 305 for veracity, 302, 622-629 in rebuttal. 302, 304-310 how proved, 303-305, 308-312 put in issue, 303 in divorce, 304 of witnesses, 304 IXDEX. 751 [The numbers refer to pages.] Reputation — Continued proof of specific acts, 303-305, 308-312 of accused for truthfulness, 309 in libel and slander, 311-313 in the family to prove pedigree, 190 to prove marriage, 295-298 see Character Rescission of written contract, oral evidence to prove, 433, 438, 443 Res ges tee, 20-29, 658 narration of past events, 23 statement of patient, 24 declarations and acts, 24 illustrations, 24, 25, 28, 29 defined, 20, 25, 28 accidents, 28 acts and words of bystanders, 28 time statements must be made, 23, 28 accompanying statements, 51, 54, 55 Res inter alios, 9, 65-76, 663 Res ipsa loquitur, 476, 478, 479, 485 Right to open and close, 464 Rules of practice of courts, judicial notice, 315 Sanity, opinion as to, 256-258, 262, 263 presumption of, 508 statements accompanying acts, 51 Science or art, defined, 267 opinion evidence, 267-284 Scientific books, 211, 214 expert testimony, 276, 284 Sealing and delivery of deeds, presumption as to, 413-415 Seals, judicial notice of, 316, 328 of foreign governments, 317. 328 Seamen, evidence taken de bene esse, 584 Secondary evidence, xxi, 361-383 what is, 361-364 when admissible, 365-379 notice to produce. 379-383 degrees of, 364, 373, 378 752 INDEX. [The numbers refer to pages.] Secondary — Continued preliminary proof, 369, 377 kinds of, 373 of the contents of documents, 425-459 Secretary of State, answers as to foreign jurisdiction, 409 Seduction, character for chastity, 302, 303, 305 corroboration necessary, 569-571 Self-defense, burden of proof, 471 Self-serving declarations, 106, 108, 109 as res gestce, 108 Self-serving entries in books of account, 167 Sense of impending death, 157, 158, 160 Separating witnesses, 589 Services, opinion as to value, 275 Seven years' absence, presumption of death, 497 Sheriff, admissions of debtor as against, 131 Shifting burden of proof, 472-480, 481 Signatures of judges, judicial notice, 316 Silence, admissions by, 105-109 in the face of accusation, 58 Similar but unconnected facts, 65-76 crimes, accidents, etc., 65-76, 663 Slander, proof of character to mitigate damages, 311-313 Spiritual adviser, burden of proof, 490 Stamp of a document, presumption as to, 413 State affairs, official communications, 546 Statements accompanying acts, 49-58, 658 in presence of a person, 49-58 accompanying acts as res gestce, 21-29, 51, 54, 55 of agents, as res gestce, 55 to physicians, 56 inconsistent with present testimony, 612-619 in books, documents, and records, 199 in works of history, maps, charts, and plans, 209-217 by conspirators, 29-34 explanatory of acts, 41-48 of intention, 43, 46 by deceased persons, 154-198 see Declarations INDEX. 753 [The numbers refer to pages.] Status as executor or administrator, 222, 223 as trustee, 222 as guardian, 222 as citizen, 222 as receiver, 222 Statute of Limitations, indorsements on notes, 171, 175, 17G admissions of agents, 119, 123, 131 Statute law, xxix Statutes relating to evidence, 707 printed copies as evidence of, 347, 351, 375, 378, 389 exemplifications, 392 certified copies, 396, 400 Irish, 404 judicial notice of, 316, 319 of other States, 204, 214, 348, 375, 378 and proclamations, 199, 200 Stenographer's notes, 214 Stock-books, 202, 205 Stolen goods, receiving, 76-86 Strangers, admissions by, 131-133 alterations by, 419, 422-424 judgments between, 234-238, 240-244 to documents, oral evidence by, 457-459, 691 Striking out testimony, 588, 593, 595 Suborning witnesses, 42, 44 Subpoena duces tecum, 379-382 refusal to produce, 380, 381 Subscribing witnesses, opinion as to sanity, 262, 263, 266 see Attesting Witnesses Subsequent agreements, oral proof of, to add to or alter a writing. 426, 430, 433, 438, 443 conduct, 41— 18 precautions, 44, 47, 48 Substituted agreements, oral evidence of, to alter a writing, 433, 443 Suicide, burden on insurance company, 485 Supplementary agreements, oral evidence of, to add to a writing, 426, 429, 430, 433, 443 Sureties concluded by judgment against their principals, 242, 243, 244 Surety and principal, admissions of, 119, 123, 125, 131, 133 48 754 INDEX. [The numbers refer to pages.] Surprise, inconsistent statements of witness, 619 Surrounding circumstances, oral proof of, 444, 450, 453, 455 Surveyors as experts, 269, 276 Surveys, 204, 215 thirty years old, 417, 418 Surviving party incompetent as to transactions with deceased, 528— 532 Sustaining a witness whose credit has been impeached, 622-624, 627- 629 Sworn copies, 389 System, facts showing, 86-89, 663 Tables, life, 213, 214, 216 tide, 212 Tax assessors' books, 202 Tax-books, 207 Technical terms, expert evidence, 280 oral evidence to interpret, 444, 451, 455 Telegrams, primary evidence, 345, 346 paper delivered is secondary evidence, 364 Telephone, conversations by, 337 Tenant estopped to deny landlord's title, 514 Testamentary capacity, 462, 466, 482, 483, 484, 486 opinion evidence, 256-258, 262, 263, 265, 276 Testator, communications to attorney, 554 surrounding circumstances, 62 declarations by, as to contents of will, 177-179 as to capacity to make a will, 178, 179 to show undue influence, 179 as to his intention, 179 Testimony defined, 6 based on hearsay, 100 de bene esse, 584 Testing accuracy, veracity, or credibility, 604-609 Theory of relevancy, 654 Threats, 43^8 confessions obtained by, 141-150 Tide tables, 212 INDEX. 755 [The numbers refer to pages.] Time, presumption as to death, 497-500 and place of reputation for truth, 628 for objecting to evidence, G03 Title, 34-37, 657 declarations in disparagement of, 174, 175, 176 compelling production of deeds, 559-561 of landlord, estoppel of tenant, 514 Town clerk's record, 202 Trade customs, 39, 40 Transaction, facts forming part of one and the same, 20-29 illustrations, 24, 25, 28, 29 Transactions with one deceased, 528-532 Transcript of justice, 205 Transcripts of judgments, 398, 400, 402 of court records, 401 Treason, number of witnesses, 572-574 Treaties, judicial notice, 318 Trust, oral evidence to establish, 430, 435, 438 Trustee and beneficiary, burden of proof, 490 Trustees, admissions by, 125 Truth and veracity, reputation for, 622-629 Unconnected facts, 65-76 Undue influence, burden of proof, 483 competency of wife, 543 relation of parties, 58-64 Unintelligible documents, oral evidence to interpret, 444 Unmeaning documents, interpretation of, 444 Unresponsive answers, 589, 590, 593, 595 Unsworn evidence of young child, 576, 700 of barrister, 579 Usage, oral proof of, to add to or alter a writing, 426, 430, 434, 439 to explain terms of a document, 452, 454 Value, opinion evidence, 258, 259, 263, 265, 266, 275, 277, 281 of chattels, 266 of services, 275 evidence as to similar property, 69-75 756 INDEX. [The numbers refer to pages.] Veracity, reputation for, 302, 622-629 questions to test, 604—609 View by jury, 336-338, 340, 341 Voluntary confession, what is, 138-141 Waiver of written contract, oral evidence to prove, 433, 438, 443 Want of jurisdiction in procuring a judgment, 246-251 Warranty, oral proof to add to a writing, 428 Weak evidence, 18 Weather reports, 166, 205 Weight of admissions as evidence, 106 Wife, see Husband and Wife Wife-beating, competency of Avife, 539 Wills, declarations of testator as to contents, 177-179 genuineness, 177 forger y of, 178 opinion of subscribing witnesses as to sanity, 262, 263, 266 oral declarations to alter, 436 attesting witnesses, 355, 358 certified copies of, 397, 399, 400 confidential relations, burden of proof, 491 interpretation of, 444-456 lost, 372 thirty years old, 417, 419 presumption as to alterations, 420, 424 Withdrawing testimony from the jury, 586, 591, 593 incompetent evidence cures error, 652 Witness, competency of, 520, 695 death of, during course of testimony, 586, 591 not to be compelled to criminate himself, 562-567 Witnesses incompetent, 695 number required, 572-574 Women, offenses against, 629-631 Words in peculiar senses, oral evidence to interpret, 444, 451, 452, 454 Writings, alteration of. by oral evidence, 425-459 Written admissions, 109 hearsay, 94, 97, 99, 100 Youth as affecting competency, 520 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 854 584 H