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 <m the question of A's sanity. Ware v. Ware, 8 Me.
'8 Greenl.) 42.
rhe question is, what wages A, a carpenter, was to receive per
day.
Evidence of what wages other carpenters received in other towns
in another State, is irrelevant. ~Noyes v. Fitzgerald, 55 Vt. 49.
Similar crimes.— Under Illustration (a) see Dodge v. Haskell, 69
Me. 429; State v. Renton, 15 X. II. 169, 174; State v. Wentworth,
37 X. II. 197, 209; Reed v. Spaulding, 42 X. H. 114-124: State v. La-
. !l. 245; State v. Hopkins, 50 Vt. 316; State v. Kelley,
t. 531. 27 Atl. -203. 36 Am. Rep. 884. The fact that the accused
lias committed similar frauds or crimes is incompetent. Jordan v.
Osgood. 10!) Mass. 157: Costelo v. Crowell, 139 Mass. 588: Com. v.
21 Pick, i Mass.) 522: Com. v. Wilson, 2 Cush. fMass.) 590;
Com. v. Campbell, 7 Allen (Mass.), 541, 83 Am. Dec. 705; Jordan
v. Osgood, inn Mass. 157; Com. v. Jackson. 132 Mass. 16, 19, 44 Am.
Rep. 299. note; Miller v. Curtis. 158 Mass. 129: Janzen v. People,
159 111. 440: Boyd v. U. 8., 142 U. S. 450; Shaffner v. Com., 72 Pa.
CO.
Chap. HI.] THE LAW OF EVIDENCE. 69
Limitations of the rule. — In Best's Principles of Evidence (Cham-
berlayne's 5th ed. ), p. 48Sn, it is said:
" The grounds of the rule are, therefore, entirely practical ; viz. :
(1) to prevent multiplicity of collateral issues, confusing the jury
and acting as a surprise upon the parties; (2) to provide that a man
shall not be convicted of one crime by evidence that he has committed
another. Hubbard v. R. R. Co., 39 Me. 506. This being the case,
there may be said to exist in the United States, a strong tendency
to limit the rule in civil causes. This relaxation appears most com-
monly in the numerous cases where the necessary proof of liability
consists in strengthening a possible into a probable cause by elimi-
nation of all complicating circumstances ; in other words, by estab-
lishing the desired relation of cause and effect through the inductive
process of tracing the same effect through a variety of instances
where the cause for which legal liability is claimed is the only con-
stant force."
Where the question is as to whether certain facts were the result
of alleged causes, other effects of the causes may be shown.
The following cases illustrate the limitations* of the rule of the
text :
Value. — On questions of value, evidence as to similar property is
relevant. Norton v. Willis, 73 Me. 580; Warren v. Wheeler, 21 Me.
484; Fogg v. Hill, 21 Me. 529; Snoio v. B. & M. R. R. Co., 65 Me. 230;
Thornton v. Campton, 18 N. H. 20; March v. R. R. Co., 19 N. H. 376;
Concord R. R. Co. v. Greely, 23 N. H. 242; Hoit v. Russell, 56 N. II.
559; While v. R. R. Co., 30 N. H. 188; Hildreth v. Fitts, 53 Vt. 684;
demons v. demons, 68 Vt. 77; Cross v. Wilkins, 43 N. H. 332; Mel-
vin v. Bullard, 35 Vt. 268; Haven v. County Comrs., 155 Mass. 467;
Pierce v. Boston, 164 Mass. 92; Lyman v. Boston, 164 Mass. 99; Bow-
ditch v. Boston, 164 Mass. 107; Newsome v. Davis, 133 Mass. 343:
Elmore v. Johnson, 143 111. 573; Mayor of Baltimore v. Smith Co.,
80 Md. 458; St. Louis, etc., R. Co. v. Clark, 121 Mo. 169. But the
valuation of the tax assessors is irrelevant. Concord Land <C- Water-
Power Co. v. Clough, 69 N. H. 609, 45 Atl. 565.
Evidence is admissible touching the value of the same property
at other times, and that of similar property. Beach v. Clark, 51
Conn. 200; Freeman's Appeal, 71 Conn. 708; Abbott v. Wyse, 15
Conn. 260. And evidence of its selling price is admissible. Sanford
v. Peck, 63 Conn. 494.
But a tax assessment is inadmissible. Martin v. N. Y. & N. E. R. R.
Co., 62 Conn. 331, 343, 25 Atl. 239.
70 A DIGEST OF [Takt I.
Evidence of the value of real estate at a certain date is relevant
upon the question of its value about a year later. Freeman's Appeal,
71 Conn. 708.
One sent by the plaintiff, a physician, as a substitute to attend the
defendant, testified on his direct examination as to the reasonable-
ness of the plaintiff's charges. Held, that upon his cross-examination
he might be asked whether his own charges for the same services
were reasonable, and how much they were. Sayles v. Fitzgerald, 72
Conn. 392.
In a suit by an attorney for fees for advice and trial in the
Superior Court, having testified that his charges were reasonable,
he was asked, on cross-examination, what his customary charges per
day were for trying cases before a justice of the peace. Held, no
error to admit the question, but that it tended to furnish a legitimate
standard of comparison. Phelps v. Hunt, 43 Conn. 198. See also
Robbins v. Harvey, 5 Conn. 341.
The opinion of an expert as to the value ol other land in the vicinity
is irrelevant. Beale v. Boston, 166 Mass. 53.
In order to render the selling price of goods admissible, to prove the
value of others, the similarity of the two lots must be established.
Haven v. County Comrs., 155 Mass. 467; Berney v. Dinsmore, 141
Mass. 42.
But an unaccepted offer to purchase or sell is irrelevant. Winni-
simmet Co. v. Grueby, 111 Mass. 543; Wood v. Ins. Co., 126 Mass. 316;
Davis v. Charles River Branch R. R. Co., 11 Cush. (Mass.) 506.
And the valuation of an assessor is irrelevant. Thompson v. Bos-
ton, 148 Mass. 387; Anthony v. R. R. Co., 162 Mass. 60, 37 N. E. 780.
A witness as to the value of land, before expressing an opinion as to
its value, should show that he is familiar with sales of similar prop-
erty and the prices paid therefor. Cochrane v. Commonwealth, 175
Mass. 299, 56 N. E. 610; Phillips v. Marblehead, 148 Mass. 326, 19
N. E. 547.
Highway injuries. — In suits for injuries on the highway, evidence
as to the condition of the road about the same time, a short distance
from the exact spot, is admissible. Kent v. Lincoln, 32 Vt. 591.
Evidence that other horses had been frightened at the same obstacle
is admissible. Darling v. Westmoreland, 52 N. H. 401 ; Crocker v.
McGregor, 76 Me. 282; Gordon v. Boston, etc., R. R. Co., 58 N. H. 396.
In suits for injuries on the highway, evidence as to the condition of
the road about the same time, a short distance from the exact spot,
is admissible. Bailey v. Trumbull, 31 Conn. 581.
Chap. III.] THE LAW OF EVIDENCE. 71
The question is, whether a particular place in the roadbed of a
street-railway company was defective and in need of repairs. The fact
that other places in the roadbed were in want of repairs is deemed
irrelevant. Cunningham v. Fair Haven & Westville R. R. Co., 72
Conn. 244, 6 Am. Neg. Rep. 427, 43 Atl. 1047.
Where the use of a road made by the plaintiff's intestate was other-
wise than passing along it in the usual way, it was held, that the court
properly charged the jury that the fact that other persons had passed
and repassed for several years over the highway at the place in ques-
tion without accident, was not evidence that the town had performed
its duty in making the highway reasonably safe. Lutton v. Vernon,
62 Conn. 8.
In suits for injuries on the highway, evidence as to the condition
of the road about the same time, a short distance from the exact
spot, is admissible. Collins v. Dorchester, 6 Cush. (Mass.) 396.
Negligence. — Evidence of negligence on previous occasions is not
admissible in suits for negligence. Parker v. Portland Pub. Co., 69
Me. 173, 31 Am. Rep. 262. See, also, Bremner v. Newcastle, 83 Me.
415.
A party cannot show that he was not negligent upon one occasion,
by proving that he was careful on other occasions. Laufer v. Bridge-
port Traction Co., 68 Conn. 475.
It is a general rule that a party charged with negligent conduct
will not be allowed to show that such conduct was common or cus-
tomary among those engaged in an occupation similar to his own,
or among those placed in like circumstances and owing the same
duties. Bassett v. Shares, 63 Conn. 43.
Evidence of negligence on previous occasions is not admissible in
suits for negligence. Robinson v. Fitchburg & W. R. R. Co., 7 Gray
(Mass.), 92; Maguire v. Middlesex R. R. Co., 115 Mass. 239; Whit-
ney v. Gross, 140 Mass. 232; Lane v. Boston d Albany R. R. Co., 112
Mass. 455.
Similar contracts inadmissible to show the making of a like con-
tract. — Loicenstein v. Lombard, Ayres & Co. (Sup. 1897), 45 N". Y.
Supp. 2S6. 58 N. E. 44. 164 N. Y. 324, 333.
Illustration (a). — See People v. Flanigan, 42 App. Div. 318, 39
N. Y. Supp. 101; People v. Fitzgerald, 156 N. Y. 253, 50 N. E. 846,
reviewing 20 App. Div. 139; People v. Freeman, 25 App. Div. 583,
50 N. Y. Supp. 984; People v. McLoughlin, 150 N. Y. 365, 386, 44
N. E. 1017; People v. Drake, 10 N. Y. Cr. 31; Coleman v. People,
55 N. Y. 81; People v. CorUn, 56 N. Y. 363; People v. Oibbs, 93
A DIGEST OF [Part I.
N. Y. 471; People v. Sharp, 107 X. Y. 427, 14 X. E. 319, 1 Am. St.
Rep. 851; People v. Doiding, 84 N. Y. 480; People v. Greeuwall, 108
X. Y. 301; Phillips v. /-*eopZe, 57 Barb. 354; People v. White, 14
Wend. Ill; People v. Keepers (Sup.), 8 X. Y. Cr. 140, 14 X. Y.
Supp. 60; People v. Justices of Court of Spec. Sessions, 10 Hun,
158; Boland v. People, 19 Hun, 80; People v. Drake, 05 Hun, 331,
20 X. Y. Supp. 228 ; People v. Eurlburt, 92 Hun, 46, 30 X. Y. Supp.
867; People v. Dibble, 3 Abb. Dec. 518, 5 Park. Cr. 28; Hall v.
People, 6 Park. Cr. 671.
New Jersey.
Illustration (a). — Commission of other crimes of like nature not
admissible to prove that defendant would be likely to commit the one
in question. Bullock v. State, 65 X. J. L. 557; State v. Sprague, 64
X. J. L. 419; Ryan v. State, 60 X. J. L. 552; Parks v. State, 50
X. J. L. 573; Meyer v. /S/aie, 59 X. J. L. 310; State v. Raymond, 53
X. J. L. 200; Leonard v. Sta^e, 00 X. J. L. 8.
Other offenses are not provable merely to show that defendant
would be likely to commit a crime. Clark v. State, 47 X. J. L. 550.
Actions for criminal conversation. — In action for criminal con-
versation the defendant may be asked on cross-examination aa to
intercourse with plaintiff's wife prior to her marriage. Foulks v.
Archer, 31 X. J. L. 58.
Divorce. — Antenuptial incontinence not admissible to prove su
quont adultery. Hedden v. Heddcn, 21 X. J. Eq. 01.
Burning of insured buildings. — Evidence that five years previously
insured buildings belonging to defendant were burned not admissible
to prove that defendant set fire to another insured building. Stale
v. Raymond, 53 X. J. L. 260.
Libel. — -In lil>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-
<to?i Assn., 124 Mo. 124.
But such evidence is not conclusive proof of the receipt of the
letter. Schutz v. Jordan, 141 U. S. 213; Harrington v. Hickman,
148 Pa. 405. Nor is like evidence conclusive in the case of telegrams.
U. S. v. Babcock, 3 Dill. 571; Eppinger v. Scott, 112 Cal. 369.
The question is, whether a particular letter reached A. The fact
that it was the usage, at a hotel, to deposit all letters, left for the
guests, in an urn, whence they were sent, at short intervals during the
day, to the rooms of the different guests to whom they were directed,
is deemed to be relevant. Dana v. Kemble, 19 Pick. (Mass.) 112.
The question is, whether a letter reached A. The facts that B, the
alleged sender, took a copy thereof in the course of his business, and
in accordance with his custom, by which he would naturally deposit
the letter in the post-office, directed and post-paid, are deemed to be
relevant. McKay v. Myers. 168 Mass. 312. 47 N. E. 98.
The question is, whether a particular telegram reached A.
92 A DIGEST OF [Part I.
The facts that it was properly addressed and deposited in the tele-
graph office, with the charges prepaid, are deemed to be relevant.
Com. v. Jeffries, 7 Allen (Mass.), 548, 73 Am. Dee. 712.
The question is, whether a notice of protest was sent on a given day.
The post-mark of the office where it was mailed is deemed to be rele-
vant. New Haven County Bank v. Mitchell, 15 Conn. 206.
The question is, whether notice was given to an indorser of a note
upon its dishonor. The testimony of a notary public, allege., to have
given such notice, as to his usual course of proceeding and his custom-
ary habit of business, in regard to giving notice, is deemed to be rele-
vant. Union Bank v. Stone, 50 Me. 595, 79 Am. Dec. 631.
In order to entitle a party to the benefit of the presumption, it
must be shown that the letter was mailed properly addressed, and
that it came from proper custody. Ward v. Hasbrouck, 60 N. Y.
Supp. 391, 44 App. Div. 32.
New Jersey.
Agency. — The fact of agency may be proved by acts and conduct
of the principal and agent. Brahn v. Forge Co., 38 N. J. L. 74.
Holding office. — Den. v. Pond, Coxe, 379; Brewster v. Vail, Spen.
56; Conover v. Solomon, Spen. 295; Smith v. Perth Amboy, 4 Harr.
52; Reeves v. Ferguson, 31 X. J. L. 107; Gilbert v. Patterson, 32
N. J. L. 177; Gratz v. Wilson, 1 Hal. 419.
One's acting as constable is sufficient evidence of his authority.
Stout v. flopping, 1 Hal. 125.
Maryland.
Holding office. — Proof that one has acted in a public capacity
raises the presumption that he had authority. Hanon v. State, 63
Md. 123.
Course of business. — To prove the existence of an instrument, a
public officer may testify that according to the custom of his office
certain entries would not have been made if the instrument in ques-
tion had not been produced. Slate v. Mayor. 52 Md. 398.
The usual custom of a justice of the peace in drawing deeds not
admitted. Pocock v. Hendricks, S G. & J. 421.
Agency. — Agency may be proved by course of dealing. Packing
Co. v. Broirn. S7 Md. 1.
Mailing letter. — Evidence that a letter was mailed is evidence
that it was received. Phelps v. Georges Creek Co., 60 Md. 536:
Roberts v. Mattress Co., 46 Md. 374.
Chap. III.] THE LAW OF EVIDENCE. 93
To prove receipt of a letter, it may be shown that it was written,
copied, addressed, and prepared for mailing according to the usual
course of business, and tbat another letter placed in the same bunch
was duly received by its addressee. Bank v. Raney & Co.., 11 Md.
321 ; Williams v. Brailsford, 25 Md. 126.
Pennsylvania.
Mailing letter.— Illustration (c). Folsom v. Cook, 115 Pa. 539.
Proof of a letter properly addressed and mailed is prima facie
evidence of its receipt. But it is rebuttable. Mutual Ins. Co. v.
Toy Co., 97 Pa. 424; Whitmore v. Insurance Co., 148 Pa. 405; Jensen
v. McCorkell, 154 Pa. 323; AlcSparron v. Insurance Co., 193 Pa. 184.
" Letters properly directed and duly mailed are sufficient evidence
of notice of the dishonor of bills, or nonpayment of negotiable notes/'
Kenney v. Altvater, 11 Pa. 34; Bank v. McMonigle, 69 Pa. 156.
Course of business. — First Nat. Bank v. McMonigle, 69 Pa. 156.
Proof of uniform course of business between two parties admitted
to show that there was no liability for services performed. McCauVs
Estate, 206 Pa. 506.
Course of business between testatrix and beneficiary admitted to
show undue influence. Robinson v. Robinson, 203 Pa. 400.
Acting as officer. — That one acted as coroner is prima facie evi-
dence that he was commissioned and his sureties approved. Young
v. Com., 6 Binn. 88.
Acting as bank cashier is admissible to prove his appointment.
Barrington v. Bank, 14 S. & R. 405.
Acting as agent. — Agency proved by proof of acts as agent with
knowledge of principal. Culver v. Ice Co., 206 Pa. 481.
94 A DIGEST OF [Part I.
CHAPTEE IV.
HEARSAY IRRELEVANT EXCEPT IN CERTAIN CASES.
Article 14.*
hearsay and the contents of documents irrelevant.
(a) The fact that a statement was made by a person not
called as a witness, and
(&) the fact that a statement is contained or recorded in
any book, document, or record whatever, proof of which is
not admissible on other grounds,
are respectively deemed to be irrelevant to the truth of
the matter stated, except (as regards («•)) in the cases con-
tained in the first section of this chapter ; x
and except (as regards (&)) in the cases contained in the
second section of this chapter.
Illustrations,
(a) A declaration by a deceased attesting witness to a deed that he
had forged it, is deemed to be irrelevant to the question of its validity. 2
• See Note VIII.
1 It is important to observe the distinction between the principles
which regulate the admissibility of the statements contained in a docu-
ment and those which regulate the manner in which they must be
proved. On this subject see the whole of Part II.
ZBtobart v. Dryden, 1836, 1 M. & W. 615.
Chap. IV.] THE LAW OF EVIDENCE. 95
(b) The question is, whether A was born at a certain time and
place. The fact that a public body for a public purpose stated that
he was born at that time and place is deemed to be irrelevant, the
circumstances not being sueh as to bring the case within the provi-
sions of Article 34.3
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 99; Mc-
Kelvey on Evidence, p. 203.
Hearsay inadmissible. — Authorities on the first clause of the text.
In re Hurlburi's Estate, 68 Vt. 366, 35 Atl. 77; Quinnam v. Quin-
nam, 71 Me. 179; Sidelinger v. Bucklin, 64 Me. 371; Chapman v.
Tuntchell, 37 Me. 59, 58 Am. Dec. 773 ; Sheldon v. Robinson, 7 N. H.
157, 26 Am. Dec. 726; Rose v. Mitchell, 21 R. I. 270, 43 Atl. 67;
Amann v. Loicell, 66 Cal. 306, 5 Pac. 363; Aiken v. Hodge, 61 111.
436; Bank of Monroe v. Gifford, 72 la. 750, 32 N. W. 669; Hipps v.
Wardle, 1 Atl. (Pa.) 727; Dobson v. Cochran, 34 S. C. 518, 13 S. E.
679; Edgell v. Francis, 66 Mich. 303, 33 N. W. 501; Sutherland v.
Round, 57 Fed. Rep. 467, 6 C. C. A. 428, 16 U. S. App. 30; Cook
v. Osborn, 2 Root (Conn.), 31; Baxter v. Camp, 71 Conn. 245, 41 Atl.
803, 42 L. R. A. 514; Brown v. Butler, 71 Conn. 576, 42 Atl. 654;
Porter v. Ritch, 70 Conn. 235; Allen v. Rundle, 50 Conn. 24; Strong
v. Smith, 62 Conn. 43; Benton v. Starr, 58 Conn. 288, 290; McEin-
non v. Norcross, 148 Mass. 533, 30 N. E. 183; Ryan v. Merriam, 4
Allen (86 Mass.), 77.
Instances. — The question is, whether A made a promise of marriage
to B.
The declarations of A's mother, to the plaintiff, B, made in A's
absence, and not communicated to him, are deemed irrelevant either
as tending to prove the alleged promise on the part of A, the defend-
ant, or that on the part of B. Lawrence v. Cooke, 56 Me. 187, 96
Am. Dec. 443.
The declarations of deceased persons, who had means of knowledge
and were disinterested, are deemed irrelevant in relation to acts of
ownership or possession on the part of A. Wendell v. Abbott, 45
N. H. 349.
a Sturla v. Freccia, 1880, 5 App. Cas. 623.
96 A DIGEST OF [Part I.
The question is, what was the boundary line between the property
of A and of B, and what was the location of a certain corner therein.
The fact that on a survey of the line by C, a witness, the plaintiff's
brother, D, was present, and did not object to his taking the corner
to be at the place where the defendant, B, claimed it to be, is deemed
to be irrelevant as against A, the plaintiff. Johnson v. Prescott, 67
N. H. 597, 32 Atl. 775.
The question is, whether a warranty that a horse " would work
well " had been broken.
The fact that a horse trainer, not called as a witness, had offered
to subdue the horse for the plaintiff, A, for a certain sum, but that
A declined to employ him, is irrelevant and hearsay. Gates V. Moore,
51 Vt. 222.
The question is, whether an injury was occasioned by A.
The reasons given by guests of an inn for leaving it when offered
in testimony as declarations to B, a witness, are irrelevant as to
the question in controversy. Wesson v. Washburn Iron Co., 13 Allen
(Mass.), 95, 90 Am. Dec. 181.
The question is, how a certain accident happened, whereby A, an
employee, was injured.
Testimony of a conversation with B, a foreman, in which B told
how the accident to A, the plaintiff, happened, is irrelevant. McKin-
non v. Norcross, 148 Mass. 533, 20 N. E. 183.
The question is, whether A, a deceased person, was insane.
Evidence of what his widow, B, had said in relation to his insanity
is deemed irrelevant. Cook v. Osborn, 2 Boot (Conn.), 31.
The question is, whether a reconveyance of land from B to A was
valid as against C, the plaintiff in an ejectment suit against A.
Declarations of B, made to C out of court, showing that the deed
from A to B was bona fide, being intended as security for responsibili-
ties incurred by B for A, and a writing of defeasance was simul-
taneously given back are deemed irrelevant. Chapin v. Pease, 10
Conn. 69, 25 Am. Dec. 56.
The question is, whether a certain dog was vicious in biting A,
who brought an action against his master, B, fo; damages resulting
from the bite.
The fact that A, upon dropping into a drowse, would jump up and
call, " Take him off,'' that the dog was biting him, is deemed irrele-
vant. Plummer v. Richer, 71 Vt. 114, 41 Atl. 1045.
Cuap. IV.] THE LAW OF EVIDENCE. 97
Written hearsay inadmissible. — Authorities on the second clause
of the text. Kimball v. Hilton, 92 Me. 214, 42 Atl. 394; Ordway v.
Haynes, 50 N. H. 159; State v. O'Brien, 7 R. I. 336; Hibbard v. Mills,
46 Vt. 243; Abel v. Fitch, 20 Conn. 90, 96; Buckman v. Barnum,
15 Conn. 67; Allen's Appeal, 69 Conn. 702, 708, 38 Atl. 701; Ham-
mond v. Hammond Buckle Co., 72 Conn. 130, 139, 44 Atl. 25; Rora-
back v. Pennsylvania Coal Co., 58 Conn. 292; Union v. Plainfield,
39 Conn. 563; Caron v. B. d A. R. R. Co., 167 Mass. 72; Prescott V.
Ward, 10 Allen (Mass.), 203; Vicksburg, etc., R. Co. v. O'Brien, 119
U. S. 99; Munshower v. &tofe, 55 Md. 11; Kelley v. State, 82 Ga.
441 ; State v. Gee, 92 N. C. 756.
Instances. — The question is, what were the terms of a contract
made upon a particular occasion by A, the agent of B, with C.
A letter to B, from A, relative to the contract which A proposes
to make, is irrelevant to prove the contract, being a mere declaration
out of court. Sargent V. Wording, 46 Me. 464.
In a suit by A, for the alienation of his wife's affections, the ques-
tion is, why B, the wife, remained away from her husband, A.
A declaration and petition for divorce on the ground of adultery,
offered in evidence by A, are irrelevant when B, the wife, testifies
that she left him be ause of cruel treatment, but does not claim that
she stayed away because of unjust charges. Rose v. Mitchell, 21
R. I. 270, 21 R. I. (part 2) 60, 43 Atl. 67.
The question is, whether A was employed by B, a corporation, a9
treasurer and general manager.
An extract from the annual report of C, president of this corpora-
tion, containing a statement that A is " now the manager," is irrele-
vant. Hammond v. Hammond Buckle Co., 72 Conn. 130, 44 Atl. 25.
The question is, what was the fair cash value of certain shares of
stock.
Quotations in newspapers, obtained from persons who might have
been summoned as witnesses, are deemed irrelevant, being hearsay.
National Bank of Commerce v. New Bedford, 175 Mass. 257, 56 N. E.
288. See Laurent v. Vaughn, 30 Vt. 90, 94, 95.
The question is, whether A or B owned a certain scientific cata-
logue manuscript. Letters written by C to A, the plaintiff, in an
action of replevin, who recognized A's ownership, are irrelevant and
hearsay. Root v. Borst, 142 N. Y. 62, 36 N. E. 814.
7
98 A DIGEST OF [Pabt I.
Entries in a police blotter are not admissible to show how a motor-
man acted at the time of an accident. Kerr v. Metropolitan St. Ry.
Co., 55 N. Y. Supp. 1142, 57 N. Y. Supp. 794, 27 Misc. Rep. 190.
Letters of third persons are mere hearsay and inadmissible.
Frank v. Brewer, 26 N. Y. St. R. 590, 7 N. Y. Supp. 182; Roth-
child v. Schwarz, 59 N. Y. Supp. 527, 28 Misc. Rep. 521; Welsbach
Commercial Co. v. Popper, 59 N. Y. Supp. 1016; O'Brien v. Gal-
lagher, 57 N. Y. Supp. 250, 26 Misc. Rep. 838.
A time card made by a conductor is inadmissible to prove when
an accident occurred. Lucas v. Metropolitan St. Ry. Co., 67 N. Y.
Supp. 833, 56 App. Div. 405.
Newspaper accounts are not evidence. Child v. Sun Mutual In-
surance Co., 3 Sand. 26 ; Downs v. New York Central Railroad Co.,
47 N. Y. 83.
Affidavit. — An affidavit in a suit is hearsay as to third parties.
Manning v. Bresnahan, 63 Mich. 584; Cook v. Hopper, 23 Mich.
511.
New Jersey.
General rule excluding hearsay. Demoney v. Walker, Coxe, 33;
Curtis v. Aaronson, 49 N. J. L. 68; Arata v. Sullivan, 63 N. J. L.
46; Trenton Ins. Co. v. Johnson, 4 Zab. 576; Horner v. Leeds, 25
N. J. L. 106; McK ernan v. McDonald, 27 N. J. L. 541; Stevens v.
Post, 12 N. J. Eq. 408.
Hearsay evidence received by the court when it would not have
been admissible before a jury. State v. McDonald, Coxe, 333.
Statements of third persons admitted to fix the recollection of the
witness. State v. Fox, 25 N. J. L. 566.
Reputation in issue. — Hearsay admissible when the fact to be
shown is notoriety. Browning v. Skillrnan, 4 Zab. 351.
Deceased witness. — Declarations of a deceased attesting witness
that a will was not duly executed, notwithstanding the contrary
presumption arising from proof of his signature as such witness.
held admissible. Church v. Ten Eyck, 1 Dutch. 40; affirmed in
Otteraon v. Hofford, 36 N. J. L. 129.
Objecting to hearsay. — Hearsay evidence, no objection to its ad-
mission having been made, held sufficient to prove that W was agent
of defendant. Smith v. Delaware & Atl. T. & T. Co., 63 N. J. Eq. 93. '
Instances. — Declarations of a testator made after the will \n
executed are hearsay. Meeker V. Boylan, 28 N. J. L. 274.
Statements by one not a party to the suit claiming an interest in
property and denying that defendant had any interest, not made in
Chap. IV.] THE LAW OF EVIDENCE. 99
the presence of the defendant, are not admissible. Hoyt v. Hoyt, 12
C. E. Gr. 399.
Statements by complainant made not in defendant's presence inad-
missible as against defendant. Smith v. McVeigh, 11 N. J. Eq. 242.
The fact that defendant held herself oat to be a partner cannot be
proved by statements of other members of the firm that she had
been made a partner. Carey v. Marshall, 67 N. J. L. 236.
Agency cannot be proved by the declarations of the agent. Smith
v. Delaware & Atl. T. & T. Co., 63 N. J. Eq. 93.
Statements in Dun's Commercial Agency report are mere hearsay
and not admissible to prove statements made by parties to the re-
porter. Coicen v. Bloomberg, 60 N. J. L. 385.
A confession of a particeps criminis in adultery is not admissible.
Berckmans V. Berckmans, 16 N. J. Eq. 122.
Written hearsay. — Railroad Co. v. May, 48 N. J. L. 401.
Maryland.
General rule excluding hearsay. — Norwood v. State, 45 Md. 68 ;
Herrick. v. Swomley, 56 Md. 439; Smith v. Wood, 31 Md. 293; Lee
V. Tinges, 7 Md. 215.
Instances. — Declarations of a third party as to the ownership of
property is hearsay. Chelton v. Stale, 45 Md. 564.
Statements of third persons not in the presence of a party are not
admissible against him. Sicartz v. Chickering, 58 Md. 290.
One cannot prove the truth of a fact by introducing previous state-
ments of his own. Williamson v. Dillon, 1 H. & G. 444.
Declarations of a witness who has been suddenly taken sick are
not admissible merely on the ground of necessity. Gaither v. Martin,
3 Md. 146.
Hearsay as to the position of a building; what a former owner said
is not admissible. Tome Institute v. Davis, 87 Md. 591.
To show that one acted with reasonable prudence or in good faith,
the information upon which he acted is admissible, even though it
consists of statements of third parties. Friend v. Hamill, 34 Md. 308.
Written hearsay inadmissible. — Authorities on the second clause
of the text. Munshover v. State, 55 Md. 11: Lewis v. Kramer, 3
Md. 265.
A written memorandum by one now deceased not made in the
course of business is hearsay and not admissible. Tome Institute v.
Davis, 87 Md. 591.
100 A DIGEST OF [Part I.
The fact that a letter contained a certain enclosure cannot be
proved by statements in the letter, for they are hearsay. White-
ford v. Burckmyer, 1 Gill, 127.
Letters as hearsay. — ■ Kosenstock v. Tormey, 32 Md. 169.
Voluntary affidavits are on the same basis as unsworn statements
of third parties. Patterson v. Maryland Ins. Co., 3 H. & J. 71.
As to ex parte affidavits, see also Insurance Co. v. Carlin, 58 Md.
336; Kemp v. Insurance Co., 2 G. & J. 108; Newson v. Douglass, 7
II. & J. 417.
Testimony based on hearsay. — If testimony is based wholly upon
information derived from others, it is hearsay and is not admissible.
Merrick v. Swomley, 56 Md. 439; Lewis v. Kramer, 3 Md. 265; Lee
v. Tinges. 7 Md. 215 (the correctness of an account) ; Green v. Caulk,
16 Md. 556.
Ancient facts. — Very ancient facts, written evidence of which can-
not be supposed to exist, may be proved by hearsay. Casey v. Inloes,
1 Gill, 430.
Pennsylvania.
Hearsay inadmissible. — Authority on the first clause of the text.
Hipps v. Wardle, 1 Atl. 727.
That a witness had notice of a dissolution of a partnership at a
certain time is not admissible to prove such dissolution at that time.
Shaffer v. Snyder, 7 S. & R. 503.
As to declarations of a deceased attesting witness that notwith-
standing his signature a will was not duly executed, see Grouse v.
Miller, 10 S. & R. 155.
Conversations with third persons are not admissible, though such
third person himself would be competent. Corser v. Hale, 149 Pa.
27 I ■. Johnston v. Patterson, 114 Pa, 398; Evans v. McKee, 152 Pa. 89.
Instances. — Ex parte conversations. Gordon v. Bowers, 16 Pa. 226.
Telegram from a third person. Cummings v. Gann, 52 Pa. 484.
Statements of a third person communicated to defendant. Harper
v. Kean, 11 S. & P. 280.
The accused's declarations are not competent in his favor. Com.
v. Frew, 3 Pa. Co. Ct. 402: Rudy v. Com., 128 Pa. 500.
Illustration (a). — This doctrine denied. Neely v. Necly, 17 Pa.
227.
Written hearsay. — Written hearsay just as inadmissible as oral.
Miller v. Miller, 187 Pa. 572.
A copy of a list of lands made out fifty years before the trial is
not admissible. Galloway v. Ogle, 2 Binn. 468.
Other examples : Urket v. Coryell, 5 W. & S. 60.
Chap. IV.] THE LAW OF EVIDENCE. 101
SECTION I.
HEAKSAY WHEN KELEVANT.
Article 15.*
admission defined.
An admission is a statement oral or written, suggesting
any inference as to any fact in issue or relevant or deemed
to be relevant to any such fact, made by or on behalf of
any party to any proceeding. Every admission is (subject
to the rules hereinafter stated) deemed to be a relevant fact
as against the person by or on whose behalf it is made, but
not in his favour unless it is or is deemed to be relevant for
some other reason.
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 169
et seq., 192; McKelvey on Evidence, pp. 90 et seq., 104.
Admissions competent evidence. — As supporting the text, see
Cole v. Cole, 33 Me. 542; Wilkinson v. Drew, 75 Me. 360; Hamblett
v. Hamblett, 6 N. H. 333; Olney v. Chadscy, 7 R. I. 224; Whitney
v. Bayley, 4 Allen (Mass.), 173; Lord v. Bigelow, 124 Mass. 185;
Crowley v. Pendleton, 46 Conn. 64; Saunde7s' Appeal, 54 Conn.
108; Broschart v. Tuttle, 59 Conn. 1, 21 Atl. 925, 11 L. R. A. 9, 33;
Electric Motor Co. v. D. Frisbie Co., 66 Conn. 67; Carney v. Hen-
nessey, 74 Conn. 107, 49 Atl. 910; Harrington v. Gable, 81 Pa. 406;
Folger v. Boyington, 67 Wis. 447 (pleadings) ; Pope v. Ellis, 115
•See Note IX.
102 A DIGEST OF [Part I.
U. S. 363 (pleadings) ; Bogie v. Nolan, 96 Mo. 85 (former proceed-
ings) ; Ex parte Hayes, 92 Ala. 120 (former proceedings).
If any part of a statement is received as an admission, all other
parts of the same statement which explain or qualify it must also
be received. Ins. Co. v. 'Newton, 22 Wall. 32; Vauneter v. Crossman,
42 Mich. 465; Simmons v. Haas, 56 Md. 153.
Oral admissions are not generally conclusive and may be explained
or shown to be contrary to facts, etc. Allen v. Kirk, 81 la. 658;
Miller v. Rowan, 108 Ala. 98: Knobloch v. Mueller, 123 111. 554.
And admissions may be by conduct. Wesner v. Stein, 97 Pa. St. 322 ;
Lefever v. Johnson, 79 Ind. 554.
Instances. — The question is, whether the title in a particular piece
of property was vested in A, by virtue of being derived from B, A'a
father, or not.
The fact that C, the grantor of the plaintiff, D, when he bought
this property for a home for A's mother, E, said to her: " You have
got a good home as long as you live by paying the taxes, insurance,
and keeping the house in repair," to which statement it did not ap-
pear that E, the mother of A, the defendant, made any reply, is an
admission, implied by her silence, that D's grantor, C, was the owner
of the property, and in affirmance of C"s title, and is relevant to the
question in controversy. Roberts v. Rice, 69 N. H. 472, 45 Atl. 237.
The question is, whether A, a driver employed by B, was careless
or incompetent in the overturning of a carriage driven by A, whereby
C was injured.
The fact that immediately after the accident A was discharged by
his master, B, is competent evidence as an admission that A was care-
less or incompetent. Martin v. Toicle, 59 N. H. 31.
The declaration of B, that "he wished to God it had burned the
whole of it," deemed to be relevant as an admission in an action
brought by A against B for a loss sustained by a fire negligently set
to A's grove. Wilkinson v. Drew, 75 Me. 360.
The question is, whether or not A was worth $600 at a given time.
The fact that at that time A rated his property to the assessors
at $600 is deemed to be relevant as an admission. Richardson v.
Hitchcock, 28 Vt. 757.
In an action brought by A against B, her husband, for a divorce,
because of ill-treatment of her by B, the testimony of C, that B had
6tated to him that he had ill-treated his wife, A, is deemed to be
Chap. IV.] THE LAW OF EVIDENCE. 103
relevant as an admission. Morehouse v. Morehouse, 70 Conn. 420,
39 Atl. 516.
The mere absence of declarations of a party in favor of his own
title cannot be shown by the adverse party against him. Saugatuck
Cong. Society v. East Saugatuck School Dist., 53 Conn. 481.
Answers in former actions may be introduced as admissions. Miles
v. Strong, 68 Conn. 273.
The question is, whether a certain mortgage and note were given
without consideration.
The statements of A, the mortgagee, after the execution of the
mortgage, and in the presence of B, the mortgagor, tending to show
that no consideration had passed between the parties, are deemed to
be relevant to the question in controversy as admissions. Saunders
v. Dunn, 175 Mass. 164, 55 N. E. 175.
An agreement to buy shares in a corporation is an admission of
its existence. Mann v. Williams, 143 Mass. 394.
Agency may be disproved by admissions. Hosmer v. Croat, 143
Mass. 16.
A statement by a party that he has heard stories inconsistent with
those of his witnesses is not admissible. Stephens v. Vroman, 16
N. Y. 381, reversing 18 Barb. 250.
A statement of A's share in an estate in the account of B, the
administrator, on his settlement of the estate with the surrogate,
and in proceedings for his appointment as a guardian of A, i9
deemed to be relevant as an acknowledgment by him of the amount
uue A from the estate in an action on the bond of B for failure to
pay A's distributive share. Potter v. Ogden, 136 N. Y. 384, 33 N.
E. 228.
Criminal cases. — Admissions are competent in a criminal case.
Hire v. State, 144 Ind. 359; State v. Hunt, 137 Ind. 537; David-
son v. State, 135 Ind. 254; Parker v. State, 136 Ind* 284.
Admissions of persons accused of crime are competent if volun-
tary; it is otherwise if caused by fear or compulsion. Snyder v.
State, 59 Ind. 105; Smith v. State, 10 Ind. 106; Harding v. State,
54 Ind. 359; Brown v. State, 71 Ind. 470; State v. Freeman, 12
Ind. 100.
One may be convicted on his own admissions. Anderson v. State,
26 Ind. 89.
In a bigamy trial marriage may be shown by admissions. State
v. Seals, 16 Ind. 352.
104 A DIGEST OF [Part 1.
The statements of the victim are not competent as admissions.
Shields v. State, 149 Ind. 395.
The statements of the deceased made in the absence of the ac-
cused are inadmissible in a murder trial. Jones v. State, 71 Ind.
66; Binns v. State, 57 Ind. 46.
The accused may show acts and declarations implicating another.
Jones v. State, 64 Ind. 473.
The statement of a stranger that he committed the crime is not
competent. Siple v. State, 154 Ind. 647.
The accused cannot prove his declarations made immediately
after the crime was committed. Bland v. State, 2 Ind. 608 ; Doles
v. State, 97 Ind. 555; Dukes v. State. 11 Ind. 557.
Charging the jury concerning admissions. — Garfield v. State, 74
Ind. 60, 63; Koerner v. State, 98 Ind. 7, 19; Finch v. Berguis, 89
Ind. 360, 362; Lewis v. Christie, 99 Ind. 377, 381; Shorb v. Kinzie t
100 Ind. 429, 430; Morris v. State ex rel., 101 Ind. 560, 562; Unruh
v. State ex rel, 105 Ind. 117, 120.
The court should not instruct the jury to regard oral admissions
with caution. Morris v. State, 101 Ind. 560; Davis v. Eerdy, 76
Ind. 272, 277; Newman v. Hazelrigg, 96 Ind. 73, 75; Tenor v.
Johnson, 107 Ind. 69, 70.
It is not error to refuse to instruct as to what effect shall be
given to admissions. Tobin v. Young, 124 Ind. 507, 514.
Admissions not conclusive. — Chandler v. Schoonover, 14 Ind. 324;
Richardson v. St. Joseph Iron Co., 5 Blackf. 146. Compare Mc-
Carty v. Osborne, 1 Blackf. 325.
Declarations by defendant in a slander suit on moving for a
change of venue, that he wanted to make the plaintiff trouble, are
incompetent upon the trial of the issue. Peterson v. Hutchinson, 30
Ind. 38.
As to the weight to be given to admissions, see Pence v. Make-
peace, 65 Ind. 345; Gimble v. Hufford, 46 Ind. 125; Finch v. Ber-
gins, 89 Ind. 360; Hill v. Newman, 47 Ind. 187; Newman v. Hazel-
rigg, 96 Ind. 73; McMullen v. Clark, 49 Ind. 77.
Implied admissions. — ■ Admissions may be implied from acts and
conduct. Lefever v. Johnson, 79 Ind. 554.
In order to constitute silence an admission, the statement to the
party must be made under such circumstances that he may and
naturally would reply. Johnson v. Holliday, 79 Ind. 151, 157;
Conway v. State, 118 Ind. 482, 485; Howard v. Howard, 69 Ind.
Chap. IV.] THE LAW OF EVIDENCE. 105
592; Surber v. State, 99 Ind. 71; Pierce v. Goldsberry, 35 Ind. 317;
Broyles v. State, 47 Ind. 251; Puett v. fieard, 86 Ind. 104.
He must have heard the statements. Leach v. Dickerson, 14 Ind.
App. 375.
Failure to answer a letter is not generally deemed an admission
of the truth of its contents. Hays v. Morgan, 87 Ind. 231.
Where one does not dissent from statements in a letter inclosing
a check there is an admission by silence. St. Joseph, etc. v. Globe,
etc., Co., 156 Ind. 665.
The declarations of a wife are admissible against the husband if
made in his presence. Gebhart v. Bnrkett, 57 Ind. 378.
Declarations of a husband are not admissible against the wife if
she was not present. Bremmerman v. Jennings, 101 Ind. 253.
Self-serving declarations. — Independent declarations which are
made by a party in his own favor are not admissible, unless they
form part of the res gestae. Brown v. Kenyon, 108 Ind. 283;
Scobey v. Armington, 5 Ind. 514; Church v. Drummond, 7 Ind. 17;
Zimmerman v. Marchland, 23 Ind. 474.
Conversation. — The declarations of one party and the replies of
the other, in a conversation had between the two, are evidence \.hen
proved in a cause. The jury may believe those of the one side and
reject those of the other, if they, from all the circumstances, be-
lieve one to be true and the other untrue. Ball v. Clark, 15 Ind.
370.
Self-serving declarations are admissible neither in favor of the
one making them nor his assignee. Hays v. Hynds, 28 Ind. 531.
Bank-books are not admissible in favor of the bank. First Nat.
Bank v. Williams. 4 Ind. App. 501.
Declarations in favor of the declarant cannot be offered in reply
to his admissions. Logansport Co. v. Heil, 118 Ind. 135.
But partnership books are admissible in favor of a partner.
Reno v. Crane, 2 Blackf. 217.
Of deceased person. — The fact that a person has died during the
pendency of the suit does not render his admissions incompetent.
Matson v. M dehor, 42 Mich. 477.
Admissions by silence. — Statements in the hearing of a party,
under such circumstances that acquiescence can be inferred from
his conduct, are admissible. People v. O'Brien, 68 Mich. 468.
When statements are made to him under such circumstances
that he would naturally speak, this operates as a tacit admission.
106 A DIGEST OF [Part I.
Evans v. Montgomery, 95 Mich. 497; Sanscrainte v. Torongo, 87
Mich. 69.
Conversations between one of the parties and a stranger, in the
presence of the other party, may be admissible; if admitted on the
statement of counsel that the other party was present, and it sub-
sequently appears that he was not, it may be stricken out on
motion. Bronson v. Leach, 74 Mich. 713.
New Jersey.
Weight of admissions as evidence. — Oral admissions are to be
received with caution. Jones v. Knauss, 31 N. J. Eq. 609.
Admissions by a party to the suit. — De Hart v. Creveling, 57
N. J. L. 642; Turrell v. Elizabeth, 33 N. J. L. 272; Conover v. Brown,
■2'.) N. J. Eq. 510.
Admissions in pleading.— Admissions in the pleadings are binding
on the parties. Schenck v. Schenck, 5 Hal. 276; Thompson v. Harvey,
Pen. 894; Marsh v. Mitchell, 26 N. J. Eq. 497; Tan Hook v. Somer-
■oillc Co., 5 N. J. Eq. 633; Evans v. Huffman, 5 N. J. Eq. 254; Lip-
pincott v. Ridgway, UN". J. Eq. 526; Truax v. Truax, Pen. 166;
Carren v. Coogan, 50 N. J. Eq. 268.
Admissions in an unsworn answer are competent evidence for com-
plainant. Craft v. Schlag, 62 N. J. Eq. 567.
Admission of a marriage in an answer sufficient to prove it when
corroborated. Dare v. Dare, 52 N. J. Eq. 195.
Bill of particulars treated as an admission. Lee v. Heath, 61
X. J. L. 250.
Admissions by silence. — Silence in the face of an accusation as
an admission. Donnelly v. State, 26 N. J. L. 464, 601.
Failure to reply to a letter not an admission. Hand v. Howell,
61 N. J. L. 142.
In action for divorce, statements made in letters alleged to be
from a paramour to the wife and undenied by her, regarded as ad-
missions by lior. Stickle v. Stickle, 48 N. J. Eq. 336.
By conduct. — Acts and conduct competent as admissions. Voor-
hees v. Hendrickson, 29 N. J. L. 101.
Admissions by implication. — Dixon v. Dixon, 8 C. E. Gr. 317.
By infants. — An infant is incapable of making a binding admis-
sion. Shultz v. Sanders, 38 N. J. Eq. 154, 293.
Self-serving declarations. — Declarations of a party as to the con-
tents of an agreement he has made not admissible in his favor. Wil-
son v. Hillyer, Sax. 63.
Chap. IV.] THE LAW OF EVIDENCE. 107
Declarations of a party not admissible in his own favor. Woolston
v. King, Pen. 1049; Sayre v. Sayre, 2 Gr. 487.
Declarations of a plaintiff in breach of promise made long before
action was begun are admissible to show mutuality. Peppinger v.
Low, 1 Hal. 384.
Miscellaneous. — An admission must be introduced as a whole.
Fox v. Lambson, 3 Hal. 275.
Admissions of debtor as to amount due on account are competent
without introducing the creditor's books. Botinell v. Maivha, 37
X. J. L. 198.
An admission is not competent to show that due notice has not
been given, for that is a question of law. Passaic Freeholders v.
Stevenson, 46 N. J. L. 173.
Admissions made on one trial are admissible at a subsequent trial
of the same case. Reed v. Rocap, 4 Hal. 346; Ramsden v. Bryden,
31 N. J. L. 27.
Maryland.
Admissions competent evidence. — Admissions of a party as to the
character of his possession of a chattel on the question of title.
Garner v. Smith, 7 Gill, 1.
Letters of a party containing admissions are competent evidence.
Canton v. McGraw, 67 Md. 583.
The admissions of a party may be introduced against him without
first questioning him concerning them. Kirk v. Garrett, 84 Md. 383.
Declarations against one's interest as to boundary are admissible.
Neat v. Hopkins, 87 Md. 19.
Entries in books of account made by the party to be charged are
admissible against him. Ward v. Leitch, 30 Md. 326.
Previous inconsistent declarations are admissible against a party.
Buschman v. Codd, 52 Md. 202.
The written admissions of a party at one trial are admissible
against him at a subsequent trial. El wood v. Lannon, 27 Md. 200.
A creditor may prove his account by admissions of the bankrupt
debtor made before the act of bankruptcy, but not by those made
after. Gaither v. Martin, 3 Md. 146.
Admission of a defendant that he wrote a libelous article. Maurice
v. Worden, 54 Md. 233.
Admissions of one deceased as against his estate. — In an action
against an estate for services performed the plaintiff may prove
declarations of the deceased that the plaintiff had never been paid
pnvthincf. Gill v. Donovan, 96 Md. 518.
108 A DIGEST OF [Past I.
Silence as an admission. — Failure to answer a letter making a
claim is no admission of the correctness of the claim. Biggs v.
Stueler, 93 Md. 100.
Self-serving statements. — Declarations of a party favorable to
himself are not admissible unless made in the presence of the other
party or as part of the res gestce. Boyle v. McLaughlin, 4 H. & J.
291; Bowie v. Stonestreet, G Md. 418; Green v. Sprogle, 16 Md. 579;
Knight v. House, 29 Md. 194; Nusbaum v. Thompson, 11 Md. 557;
Whiteford v. Burckmyer, 1 Gill, 127; Hagan v. Hendry, 18 Md. 177;
Wolf v. Frank, 92 Md. 138; Leffler v. Allard, 18 Md. 552.
One cannot prove a fact by proving his own previous statements.
Williamson v. Dillon, 1 H. & G. 444.
One's own letters are not admissible in his favor. Simmons v.
Haas, 56 Md. 153.
One's own declarations are not admissible in favor of his own title.
Taggart v. Boldin, 10 Md. 104.
Similar statements of a witness made before he had an interest to
misrepresent are admissible to corroborate him when he is charged
with misrepresenting by reason of some interest. Stocksdale v.
Cullison, 35 Md. 322; Washington F. I. Co. v. Davison, 30 Md. 91;
Bloomer v. State, 48 Md. 521; Cooke v. Curtis, 6 H. & J. 93.
One's own declarations near the time of the occurrence are ad-
missible to corroborate his testimony when it has been contradicted
by the other side. Mallonee v. Duff, 72 Md. 283; Maitland v. Bank,
40 Md. 540.
Where a party is alleged to have admitted that he had no title, he
may prove in rebuttal that at about the same time he asserted his
title. Brooke v. Berry, 1 Gill, 153.
Qualifying statement. — If any part of a statement is received as
an admission, all other parts of the same statement which explain or
qualify it must also be received. Simmons v. Haas, 56 Md. 153;
Smith v. Wood, 31 Md. 293; Turner v. Jenkins, 1 H. & G. 161; Bull
v. Schuberth, 2 Md. 38.
When a statement of a party is used against him, other statements
that he made as part of the same conversation are admissible though
in his own favor. Bowie v. Stonestreet, 6 Md. 418.
Pennsylvania.
Authorities.— Wilson v. Wilson, 137 Pa. 269; Cope v. Kidney, 115
Pa. 228; Bramberry's Estate, 156 Pa. 628; Winters v. Mou-rer, 163
Chap. IV.] THE LAW OF EVIDENCE. 109
Pa. 239 ; Schwartz v. Hersker, 140 Pa. 550; Harrington v. Gable, 81
Pa. 406.
An admission of a party is admissible as against him to prove the
fact admitted. Eldred v. Hazlett, 33 Pa. 307.
Admissions by a party are admissible against him, and if made in
court in another action they can be proved conclusively. Usually
admissions are uncertain proof. Stevenson v. Coal Co., 201 Pa. 122.
Admissions made in a pleading in another case are competent.
Limbert v. Jones, 136 Pa. 31.
Declarations by decedent that he intended to pay for his board are
admissible to prove a contract. Perkins v. Hasbrouck, 155 Pa. 494;
Appeal of Miller, 100 Pa. 568.
Admissions of one in possession to show that he is not holding
adversely. St. Clare v. Shale, 9 Pa. 252; S. C, 20 Pa. 105.
An offer to pay is an admission by inference that the sum is due.
Wallace v. Hussey, 63 Pa. 24.
The whole of an admission must be taken together. Newman v.
Bradley, 1 Dall. 240; Farrell V. McClea, 1 Dall. 392; Gill v. Kuhn,
S. & R. 333; Postens v. Postens, 3 W. & S. 127; Hamsher v. Kline,
57 Pa. 397.
Oral admissions are not generally conclusive and may be explained
or shown to be contrary to facts, etc. And admissions may be by
conduct. Wesner v. Stein, 97 Pa. 32:1.
Written admissions. — Martin v. Kline, 157 Pa. 473; Ege v. Med-
lar, 82 Pa. 86; Mifflin v. Juniata Co., 144 Pa. 365.
Admission by silence. — McKlenlcan v. McMillan. 6 Ta. 366; Hus-
ton's Estate, 167 Pa. 217.
Failure to file a judgment as an asset in bankruptcy is admissible
as indicating that nothing was due. Lyon v. Phillips, 106 Pa. 57;
S. P., Fullam v. Rose, 160 Pa. 47.
Silence in the face of an assertion of fact is an admission. Mc-
Clenkan v. McMillan, 6 Pa. 366.
But not under circumstances making it improper to deny the as-
sertion. McDermotl v. Hoffman, 70 Pa. 31.
Statements made in the hearing of a party at the time of paying
him money are evidence, if he remains silent. Vincent v. Huff, 8
S. & P. 381.
Declarations in one's own favor. — Declarations in one's own favor
are inadmissible. Gordon v. Bowers, 16 Pa. 226; Tisch v. TJtz, 142
Pa. 186.
When they are not part of the res gestae. Cain v. Cain, 140 Pa.
144; Duvall v. Darby, 38 Pa. 56.
110 A DIGEST OF [Pabt I.
Self-serving statements not admissible, when not4R the presence of
the other party. Levering v. Rittenhouse, 4 Whart. 130; Taylor v.
Adams, 2 S. & R. 534; Wolf v. Carothers, 3 S. & R. 240; Com. v.
Krcagei; 78 Pa. 477; McGregor v. Sibley, 69 Pa. 388; Wallace v.
Bafcer, 1 Binn. 610; Smith v. £ty>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<rs/cr v. OZi'rer, 97 Ala. 710, 12 So. 238; White v. Merrill, 82 CaL
14, 22 Pac. 1129; Holway v. Boston Land, etc., Co., 20 Colo. 7. 36
Pac. 767; Batchelder v. Rand, 117 Mass. 176; Henshaw v. Mullens,
121 Mass. 143; Dole v. Young, 24 Pick. (Mass.) 250; Davis v.
Spooner, 3 Pick. (Mass.) 284.
A party's admissions are relevant whenever they were made.
Plant v. McEwen, 4 Conn. 549.
When made — Representatives. — Brooks v. Goss, 61 Me. 307;
Barber v. Bennett, 60 Vt. 662, 15 Atl. 348, 6 Am. St. Rep. 41, 1 L.
R. A. 224 (citing this article) ; Lamar v. Micou, 112 U. S. 432; Web-
ster v. Le Compte, 74 Md. 249 ; Prudential Ins. Co. v. Fredericks,
41 111. App. 419; Godbee v. Sapp, 53 Ga. 283; Hill v. Buckminster,
5 Pick. (Mass.) 391; Faunce v. Gray, 21 Pick. (Mass.) 243; Phillips
V. Middlesex, 127 Mass. 262.
An admission of one suing or sued in a representative capacity to
be admissible must have been made while he sustained that charac-
ter. Plant v. McEwen, 4 Conn. 549.
Continuance of interest. — Supporting last paragraph of text:
Merrick v. Parkman, 18 Me. 407; Bryant v. Crosby, 40 Me. 9; Holt
V. Walker, 26 Me. (13 Shep.) 107; Treat v. Strickland, 23 Me. (10
Shep.) 234; Tarr v. Smith, 68 Me. 97; Osgood v. Eaton, 63 N. H. 355;
Morrill v. Foster, 33 N. H. 379; Mandeville v. Welch, 5 Wheat. (U.
S.) 277, 283; Dudley v. Hurst, 67 Md. 44, 1 Am. St. Rep. 368; Kim-
ball v. Leland, 110 Mass. 323; Chase v. Horton, 143 Mass. 118, 19
N. E. 31; Roberts v. Medbery, 132 Mass. 100; Bond v. Fitzpatrick,
4 Gray (Mass.), 89; Stockwell v. Blarney, 129 Mass. 312; fft/de v.
Middlesex County, 2 Gray (Mass.), 267; Osgood v. Coates, 1 Allen
(Mass.), 77; J5/afce v. Everett, 1 Allen (Mass.), 248; Simpson v.
Zh'ar, 131 Mass. 179.
So declarations by a grantor or mortgagor of land made before ac-
quiring or after parting with his interest are not competent admis-
sions against his grantee or mortgagee. Miller v. Cook, 135 111. 190;
Ruckman v. Cory, 129 U. S. 387 ; McLaughlin v. McLaughlin, 91 Pa.
St. 462.
The declarations of an assignor made after the assignment are not
receivable as admissions against his assignee. Ohio Coal Co. v. Dav-
Chap. IV.] THE LAW OF EVIDENCE. 115
enport, 37 0. St. 194; Turner v. Hardin, 80 la. 691; Winchester, etc.,
Co. v. Creary, 116 U. S. 161.
Acceptance of benefit. — Spaulding v. Albin, 63 Vt. 148, 21 Atl. 530;
Carpenter v. Hollister, 13 Vt. 552, 37 Am. Dec. 612; Alger v. An-
drews, 47 Vt. 238.
Against administrator. — The admissions of an intestate are re-
ceivable against his administrator. Clouser v. Ruckman, 104 Ind.
588; Bevins v. Cline, 21 Ind. 37; Slade v. Leonard, 75 Ind. 171.
Against trustee in bankruptcy. — Compton v. Fleming, 8 Blackf.
153. See, also, Caldwell v. Williams, 1 Ind. 405; Wynne v. Glide-
well, 17 Ind. 446.
Husband and wife. — Where a husband is sued for his wife's tort,
her declarations may be proved against him. Ball v. Bennett, 21
Ind. 427.
In a suit against husband and wife for a debt due by the wife
before the marriage, the plaintiff cannot prove admissions by the
wife during coverture. Brown v. Lasselle, 6 Blackf. 147.
On a bill against husband and wife, mere admissions in the an-
swer, although filed in the name of both husband and wife, do not
authorize a decree against her. (Citing Gr. Eq. Ev. 24; 9 Price,
556; 2 M. & K. 678; 1 Smith Ch. Pr. 253.) Comley v. Hendricks, 8
Blackf. 189; Work v. Doyle, 3 Ind. 436.
New Jersey.
Declarations of privies in estate. — Kinna v. Smith, 2 N. J. Eq.
14; Sweet v. Parker, 22 N, J. Eq. 453; Beeckman V. Montgomery, 14
N. J. Eq. 106; Ten Eyck v. Bunk, 26 N. J. L. 513; Edwards v. Der-
rickson, 28 N. J. L. 39, 29 N. J. L. 468.
The statements and acts of a former possessor of land are com-
petent evidence to prove boundary. Townsend v. Johnson, Pen. 706;
Cox v. Tomlin, 4 Harr. 76; Horner v. Slillioell, 35 N. J. L. 310; Tan
Blarcom v. Kip, 26 N. J. L. 351.
A disavowal by a previous owner of the claim now made by plain-
tiff is admissible against him. New Jersey Zinc Co. v. Lehigh Zinc
Co., 59 N. J. L. 189.
Declarations of a former holder of a note, made while such, that
it has been paid. Reed v. Vancleve, 27 N. J. L. 352.
Privies in blood. — Whether a father intended a certain convey-
ance as an advancement to his son may be shown by the father's
declarations at the time of the conveyance or afterward. Speer v.
Speer, 14 N. J. Eq. 240.
116 A DIGEST OF [Part I.
Maryland.
Nominal party. — As to admissions by one who is merely a nomi-
nal part}-, see Owings v. Low, 5 G. & J. 134.
Admissions of a party to the suit are competent evidence, although
he is acting in the capacity of trustee. 3eatiy v. Davis, 9 Gill, 211.
Joint defendants. — Admissions of a joint defendant are competent
against the other. Lowe v. Boteler, 4 H. & McH. 346.
Privies in estate. — Admissions of one under whom a party claims
title are admissible as against such party. Dorsey v. Dorsey, 3 H.
& J. 410; Keener v. Kauffman, 10 Md. 296; Richards v. Sican, 7 Gill,
366.
Admissions by a previous owner in a bill in equity are competent
against a subsequent owner in privity with the former. Stump V.
Henry, 6 Md. 201.
Statements of a former owner are not admissible as against one
not claiming under such former owner. Smith v. Wood, 31 Md. 293.
Statements of the holder of a bond are admissible against one who
holds under him. Clary v. Grimes, 12 G. & J. 31.
Privies in blood. — Declarations of the father of a party, who had
no interest in the suit and whose knowledge was derived from hear-
say, are not admissible. City Pass. Ry. v. McDonnell, 43 Md. 534.
When made — Representatives. — Webster v. Le Compte, 74 Md.
249.
Statements of an executor or administrator are admissible against
the estate only if made while he was acting in such capacity. Dent
v. Dent, 3 Gill, 4S2.
Continuance of interest. — Supporting last paragraph of text:
y v. Hurst, 67 Md. 44, 1 Am. St. Rep. 368.
.Acts and declarations of a grantor subsequent to the transfer are
not admissible to impeach it. Dudley v. Hurst, 67 Md. 44; Hall v.
Hink8, 21 Md. 406; Cooke v. Coolce, 29 Md. 538; Dorsey v. Gassaway,
2 IT. & J. 402; Stewart v. Redditt, 3 Md. 67.
Sta foments of n grantor at the time of executing the deed, that its
object is to defraud creditors, are admissible against the grantee.
McDowell v. Goldsmith, 2 Md. Ch. 370; Cooke v. Cooke, 29 Md. 538;
Groff v. Rohrer. 35 Md. 327.
Pennsylvania.
Privies in estate.— Magee v. Raiguel, 64 Pa. 110; Gratz v. Bcates,
45 Pa. 405.
Chap. IV.] THE LAW OF EVIDENCE. 117
Admissions of a predecessor in estate are admissible. Brown v.
Bank, 3 Pa. 187; Weidman v. Kohr, 4 S. & R. 174; Patton v. GoMs-
borough, 9 S. & R. 47; 8 trickier v. Torfd, 10 S. & R. 63; McKellip v.
Mcllhenny, 4 Watts, 317.
In ejectment admissions of one under whom defendant holds are
admissible. Andrew V. Fleming, 2 Dall. 93; i?eed v. Dickey, 1 Watts,
152; iiden v. Grove, 18 Pa. 377; Mclldoivny v. WiHiams, 28 Pa. 492.
Admissions and acts of former owners admitted to show boundary.
Benner V. Hauser, 11 S. & R. 352; Hunt v. Devling, 8 Watts, 403;
Sheaffer v. Eakman, 56 Pa. 144.
Entries by a decedent in his account-books against his interest are
admissible against his representatives. Appeal of Roberts, 126 Pa.
102; Johnson v. McCain, 145 Pa. 531.
By predecessor in title as to a right of way. Bennett v. Biddle,
150 Pa. 420.
Acts and statements of a former owner of personal property are
admissible against those claiming under him. Caldwell v. Gamble,
4 Watts, 292. But not acts and statements after the sale. Pier v.
Duff, 63 Pa. 59; Mitchell v. Welch, 17 Pa. 339.
Admissions of the assignor of a bond before the assignment are
admissible against the assignee. Kellogg v. Krauser, 14 S. & R. 137.
But not when made after the assignment. Eby v. Eby, 5 Pa. 435;
Work's Appeal, 59 Pa. 444.
And statements by the owner of land or by one claiming title rela-
tive to the character of his possession and title are admissible
against persons in privity with the declarant. Garber v. Doersom,
117 Pa. 225.
Privies in law. — Hughes v. D. & H. Canal Co., 176 Pa. 254. 35 Atl.
190.
Person with substantial interest. — Wheeler v. Hambright, 9 S. & R.
390.
In suit against administrators, declarations of an heir are admis-
sible, because he has a substantial interest in the event. Reagan v.
Grim, 13 Pa. 50S.
When made — Parties. — Supporting text: Duncan v. Lawrence, 24
Pa. 154.
Admissions of a party are competent as against him whether ma tie
before or after the suit was brought. Morris v. Yanderen. 1 Dall.
64; Kunkle v. Wolfersberger, 6 Watts, 126; Gallaher v. Collins, 7
Watts, 552; McGill v. Ash, 7 Pa. 397; Duncan v. Lawrence, 24 Pa.
118 A DIGEST OF [Part I.
154; Shirley v. Shirley, 59 Pa. 267; Simons v. Oil Co., 61 Pa. 202;
Hunger v. Silsbee, 64 Pa. 454.
Continuance of interest. — Statements of a person who no longer
has an interest are not admissible to impeach title derived from him.
Packer v. Qonsalus, 1 S. & R. 526; Hoffman v. Lee, 3 Watts, 352;
Romig v. Romig, 2 Eawle, 241; Fostens v. Postens, 3 W. & S. 127;
Payne v. Ov/7, 7 W. & S. 458; Gregory v. (/>-#«, 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.
<C- M. R. R. Co. v. Ordway, 140 Mass. 510; Rockwell v. Taylor, 41
Conn. 59.
Illustration (e). — See Harding v. Butler, 156 Mass. 34.
Illustration (h). — Saunders v. McCarthy, 8 Allen (Mass.). 553.
Illustration (i). — Smith v. Aldrich, 12 Allen (Mass.), 553; McLel-
lan v. Cox, 36 Me. 95.
During continuance of agency. — The declarations must be made
during the continuance of the agency. Brown v. Dutchess County
Mut. Ins. Co., 71 N. Y. Supp. 670. 64 App. Div. 9.
A written statement of the terms of a lease made by an agent leas-
ing property for his principal after his agency has terminated is not
admissible. Moore v. Rankin, 67 N. Y. Supp. 179, 33 Misc. Rep. 749.
Executors and administrators. — The admissions of executors or ad-
ministrators in order to be relevant must be made while engaged in
their representative capacity. More v. Finch, 65 Hun, 404, 48 N. Y.
St. R. 23.
Agents — Preliminary proof of agency. — The court, in its discre-
tion, may receive evidence of the admissions first, and proof of the
agency later. Lanahan v. Zeltner Brewing Co., 20 Misc. Rep. 551, 46
124 A DIGEST OF [Part I.
N. Y. Supp. 431, affirming 20 Misc. Rep. 712; Smith v. Dodge, 19
N. Y. St. R. 292, 3 X. Y. Supp. 866.
The authority of an agent cannot be shown by his admissions.
Kaiser v. Hamburg-Bremen Fire Ins. Co. of Hamburg and Bremen, 69
N. Y. Supp 344, 59 App. Div. 525.
- Husband and wife. — A husband or a wife is not, as such, the agent
of the other party to the relation. Lay Grae v. Peterson, 2 Sandf. 338.
Report to principal — Modifying text. — An agent's letter to his
principal, detailing the final settlement of an account he was author-
ized to effect, after the agreement was concluded, is admissible to
prove such settlement as a part of the res gestae. Ballard v. Bev-
eridge, 61 N. Y. Supp. 648, 45 App. Div. 477.
Corporation officers and agents. — The rule of the text as to agents
applies to the agents of corporations. Meislahn v. Irving Nat. Bank,
70 N. Y. Supp. 988. 62 App. Div. 231 ; Vaughn Mach. Co. v. Quintard,
59 X. E. 1132, affirming 55 N. Y. Supp. 1114, 37 App. Div. 368.
Public agents. — As to declarations of supervisors, see Boynton v.
Phelps, 52 111. 210, 212.
The admissions of supervisors are not competent. Mann v. Sodo-
Icat, 66 111. App. 393.
The declarations of school directors not then in office are not
competent as against the school district. School Directors v. ll"«Z-
lace, 9 Brad. 312.
The declarations of county commissioners are not evidence to
bind the county. County of La Salle v. Simmons, 5 Gilm. 513.
The letter of a deputy revenue collector is not admissible as
against his principal. Grimshaiv v. Paul, 76 111. 164.
To show agency. — The declarations of an agent are not admissible
to show agency. Mellor v. Carithers, 52 111. App. 86; M'hitcside
v Margarel, 51 111. 207.
Agency may be established by parol evidence. K. B. Co. v. Shan-
non, 1 Gilm. 15; Gadwell v. Meek, 17 111. 220; O. & M. B. B. Co.
v. Middleton, 20 111. 629; Matheirs v. Hamilton, 23 111. 470; Dur-
ham v. Gill, 48 111. 151; L. 21. Ins. Co. v. Bell, 166 111. 400.
One who asserts that an agency exists has the burden of proving
it. Skakel v. Hennessey, 57 111. App. 332.
Persons jointly interested. — The admissions of one jointly inter-
ested are competent against the others. McMillan v. McDill, 110
111. 47.
Chap. IV.] THE LAW OF EVIDENCE. 125
If several persons are jointly interested, having a community
of interest, the declarations of one may be evidence against the
rest. Snyder v. Laframboise, Breese, 343. Compare Rector v.
Rector, 3 Gilm. 105; Hitt v. Ormsbec, 12 111. 166.
The admissions of one joint obligor are competent against the
rest. Rhode v. McLean, 9 Brad. 404.
The declarations of a deceased co-owner are competent against
the surviving owner. Abend v. Mueller, 11 Brad. 257.
The declaration of one tenant in common is not competent
against the other. Keegan v. Kinnaire, 12 Brad. 484.
In a. suit by a consignor against a common carrier for nondeliv-
ery, the consignee's declarations made after delivery are not admis-
sible. Ten Eyke v. Harris, 47 111. 268.
Principal and surety. — The admission of a principal as against a
surety is evidence against himself and co-obligors. Rhode v. Mc-
Lean, 101 111. 467.
Relatives. — The admissions of a son are not competent to bind
the father, unless the agency be shown. Reynolds v. Ferree, 86 111.
570.
The admissions of a father are incompetent against a child.
Cochran v. McDowell, 15 111. 11.
The declarations of a wife in the absence of the husband are
not competent as against him. Keegan v. Kinnaire, 12 Brad. 484.
The declarations of a wife, while acting as the agent of her hus-
band, are admissible. Burl. Ins. Co. v. Wzieck, 16 111. App. 296.
In a suit by a wife against a third party, the admissions of the
husband are not competent, when not made in the presence of the
wife. Fierce v. Hasbrouck, 49 111. 23.
The question of whether or not the husband is the agent of the
wife is for the jury. Bongard v. Core, 82 111. 19; Waggonseller
v. Rcxford, 2 Brad. 455.
Trustees. — A trustee cannot make an admission prejudicial to the
trust. Thomas v. Boicman, 29 111. 426, 30 111. 85.
The admissions of a trustee are not competent as against the
cestui que trust. Bragg v. Geddes, 93 111. 39.
Executors and administrators. — Statements made by an adminis-
trator before his appointment are not admissions provable against
the estate. Prudential Ins. Co. v. Fredericks, 41 111. App. 419,
423.
126 A DIGEST OF |Part I.
Coexecutors. — The admissions of deceased coexecutors are not
admissible against the other executor. Berdan v. Allen, 10 Brad. 91.
Guardian. — The statements of a guardian may be admissions to
bind the ward. Bruslt, v. Blanchard, 19 111. 31.
Joint maker of notes. — The admissions of one joint maker of a
note are not admissible against another. Rogers v. Anderson, 40
Mich. 290. Compare Dawson v. Hall, 2 Mich. 390.
New Jersey.
Agents. — The books of a bank which has been acting as the com-
mon agent of two parties are admissible against either. Oliver v.
Phelps, 20 N. J. L. 180.
Admissions of an agent are admissible against the principal only
when they are a part of a transaction within the scope of the agent's
authority. Runic v. Ten Eyck, 4 Zab. 75G; Sussex Ins. Co. v. Wood-
ruff, 26 N. J. L. 541; Ashmore v. Pennsylvania Towing Co., 38
N. J. L. 13; Blackman v. Railroad Co., 68 N. J. L. 1.
When one puts another in possession of goods he makes the latter
his agent so as to be bound by the latter*s statements to persons
contracting on the faith of the goods. Bet is v. Francis, 30 N. J. L.
152.
Agents of corporations. — Admissions of a general agent of a cor-
poration. Insurance Co. v. Potts, 55 N. J. L. 158.
Declarations of members of a township committee not admissions by
the corporate body. Traction Co. v. Horse R. Co., 53 N. J. Eq. 163.
Preliminary proof of agency. — ■ Declarations of an agent not ad-
missible to show the extent of his authority. Dowden V. Cryder, 55
N. J. L. 329.
When the fact of agency lias been established, the admissions of
the agent are competent against the principal. Gifford v. Landrine,
37 N. J. Eq. 127, 628.
Order of proof. — A verdict will not be set aside because proof of
the agency was not made until after the acts of the agent had been
given in evidence. Allen v. Bunting, 3 Harr. 299.
Partners. — Admission by one partner the admission of the other
partner also. Hoboken Bank v. Beckman, 37 N. J. Eq. 331, reversing
S. C, 36 N. J. Eq. 84; Ruckman v. Decker, 23 N. J. Eq. 283.
Entries in the books made by one partner admissible against the
others. Dunnell v. Henderson, 23 N. J. Eq. 174; Gulick v. Gulick,
2 Gr. 578.
Chap. IV.] THE LAW OF EVIDENCE. 127
The admissions of a partner after the dissolution of the firm are
admissible against the partners, if made in regard to past trans-
actions of the firm as such; such an admission may remove the bar
of the Statute of Limitations on a firm debt. Merritt v. Day, 38
N. J. L. 32. Such admissions said not to be conclusive. McElroy v.
Ludlam, 32 N. J. Eq. 828.
Preliminary proof of partnership. — The fact of partnership cannot
be proved by the admission of one partner; but after the partnership
is proved, the admissions of one are admissible against the others.
Flannigin v. Champion, 2 N. J. Eq. 51; Ruckman v. Decker, 23
N. J. Eq. 283.
Attorneys. — Solemn admissions made by way of stipulations of
the attorneys in court are admissible in a subsequent trial of the
same case. Gallagher v. McBride, 66 N. J. L. 360.
Husband and wife. — Declarations of one while acting as the agent
of the other are admissible against the other. Boyles v. H'Eoiven,
Pen. 677.
Joint contractors. — The admission of a joint covenantor is admis-
sible against the others. Walling v. Rosevelt, 1 Harr. 42; Ruckman
V. Decker, 23 N. J. Eq. 283.
The admission of a joint debtor is admissible as against all the
debtors and will revive the remedy barred by Statute of Limitations.
Parker v. Bultencorth, 46 N. J. L. 244; Black v. Lamb, 12 N. J.
Eq. 108.
Time of making admission. — Statements of counsel made after
ceasing to represent the client are not admissible against the latter.
Janeway v. Skeritt, 30 N. J. L. 97.
Maryland.
Agents. — Admissions of an agent are admissible against the prin-
cipal if made in the course of execution of the principal's affairs.
Whiteford v. Burckmyer, 1 Gill, 127; Hutzler v. Lord, 64 Md. 534.
The agency must be clearly established before declarations of the
agent become admissible against the principal. Rosenstock v.
Tormey, 32 Md. 169; Marshall v. Haney, 4 Md. 498; Rowland v.
Long, 45 Md. 439 ; Mechanics' Bank v. Bank of Balto., 36 Md. 5.
Before the admissions of an alleged agent are admissible against a
party, the fact of agency must be proved by other evidence. At well
v. Miller, 11 Md. 348; Newbold v. Bradstreet, 57 Md. 38.
128 A DIGEST OF [Part I.
Declarations of an agent within the scope of his authority are
admissible against the principal as part of the res gestce when they
are made in connection with the transaction of the principal's busi-
ness. Franklin Bank v. Navigation Co., 11 G. & J. 28; Phelps v.
Georges Creek R. Co., 60 Md. 536; Bradford v. Williams, 2 Md. Ch.
1: Thomas v. Sternheimer, 20 Md. 268; Union Banking Co. v.
Gittings, 45 Md. 181.
Declarations of an agent after the termination of his agency,
or as isolated statements and acts not in connection with the prin-
cipal's business, are not admissible. Dietrich v. Halls Springs Ry.
Co., 58 Md. 347.
Declarations of an agent after the agency is terminated are not
admissible. Oioings v. Lou-, 5 G. & J. 135; Franklin Bank v. Navi-
gation Co., 11 G. & J. 28; Phelps v. Georges Creek Co., 60 Md. 536.
Partners. — The admissions of one partner are admissible against
the others on partnership matters. Harryman v. Roberts, 52 Md. 64.
Admissions of a partner after dissolution of the firm. Neivman
■■:. McComas, 43 Md. 70.
Officer of a bank. — -Declarations of a bank president that certain
money brought to the bank belonged to the plaintiff are not ad-
missible because not within the scope of his authority. City Bank
v. Bateman, 7 H. & J. 104.
Attorneys. — Declarations of an attorney made in argument of a
case at a former trial are not admissible. B. & 0. R. R. Co. v. Boyd,
67 Md. 32.
An attorney employed to collect a claim has no authority to make
admissions for his client as to the distribution of the amount col-
lected. Lyon v. Hires, 91 Md. 411.
Husband and wife. — Declarations by a wife in the presence of her
husband as to why a deposit was made in their joint names is ad-
missible. Taylor v. Braicti, 65 Md. 366.
Joint contractors. — The acknowledgment of one of several joint
makers of a promissory note takes it out of the statute as against
the others. And this, although the others were only sureties for
the first, if the promise was not collusively made. Schindel V.
Gates, 40 Md. 604.
The admission of an administrator or executor of a joint con-
tractor is not admissible against the survivor. Wilmer v. Harris,
5 H. & J. 1.
Executors and administrators. — The declarations of an executor
t«re not admissible against the estate if made before his qualification.
Berry v. Safe Deposit Co., 96 Md. 45.
Chap. IV.] THE LAW OF EVIDENCE. 129
The admission of one of several executors is admissible to remove
the bar of the Statute of Limitations. Stoner v. Devilbiss, 70 Md.
144.
The admissions of an executor made before he is completely
clothed with the trust are not competent against him afterward.
Webster v. Le Compte, 74 Md. 249.
Pennsylvania.
Agents. — Dicken v. Winters, 169 Pa. 126; Detwiller v. Graham, 41
Leg. Int. 253; Baker v. Gas Co., 157 Pa. 593; Shafer v. Lacock,
168 Pa. 497 ; Pennsylvania R. Co. v. Books, 57 Pa. 339 (officer of a
corporation ) .
Acts and admissions of an agent in the execution of his agency
are admissible against the principal. The Portland, 2 S. & R. 197;
Shelhamer v. Thomas, 7 S. & R. 106; Ilannay v. Stewart, 6 Watts,
4S7; Dick V. Cooper, 24 Pa. 217; Woodwell v. Brown, 44 Pa. 121;
Coal Co. v. Decker, 82 Pa. 119.
Declarations by an agent after the event held not admissible to
show negligence. Giberson v. Mills Co., 174 Pa. 369; American 8. S.
Co. v. Landreth, 102 Pa. 131. See also Chapin v. Cambria Iron Co.,
145 Pa. 478.
Admissions of an agent within a reasonable time after the trans-
action are admissible. Transportation Co. v. Riegel, 73 Pa. 72.
Admissions by trustees and agents of a congregation. Magill v.
Kaufman, 4 S. & R. 317.
Scope of agent's authority. — Admissions of one's agent as to mat-
ters not within the scope of his authority are not admissible.
Monocacy B. Co. v. American Mfg. Co., 83 Pa. 517; Thread Go. V.
Shoe Mfg. Co., 115 Pa. 314; Muller's Estate, 13 Pa. Co. Ct. 183;
Relief Assn. v. Post, 122 Pa. 579.
Admissions of an agent not competent against the principal un-
less made in the execution of the agency or with authority. Irvine
v. Buckaloe, 12 S. & R. 35; Wilt v. Vickers, 8 Watts, 227; Patton
v. Minesinger, 25 Pa. 393; Railroad Co. v. Books, 57 Pa. 339;
Faiccett v. Bigley, 59 Pa. 411; Railroad Co. v. Plankroad Co., 71
Pa. 350; Bigley v. Williams, 80 Pa. 107.
Statements of an agent as to his principal's motives are not ad-
missible. Earns v. Tanner, 66 Pa. 297.
Former agents. — Admissions made by one formerly an agent, but
no longer one, are not admissible. Life Ins. Co. V. Roth, 87 Pa. 409.
130 1 DIGEST OF [Pabt I.
Admissions of a former president of a bank not admissible.
Sterling v. Trading Co., 11 S. & R. 179; Bank v. Davis, 6 W. & S.
285 ; Railroad Co. v. Books, 57 Pa. 339.
Fact of agency. — Agency cannot be proved by admissions of the
agent, but he is himself a competent witness on the subject. Lawall
v. Groman, 180 Pa. 532 ; Whiting v. Lake, 91 Pa. 349.
The fact of agency must be shown before admissions of the sup-
posed agent are competent. Relief Assn. v. Post, 122 Pa. 579;
Long v. Insurance Co., 137 Pa. 335.
Statements of an agent denying the agency are not admissible
against the principal. Harrington v. Bronson, 161 Pa. 29G.
It is not error to admit declarations of the agent as against his
principal if they are followed by independent evidence of the agency
itself. Stewart v. Climax Road Mach. Co., 200 Pa. 611.
Officers of a corporation. — O'Toole v. Publishing Co., 179 Pa. 271.
To ascertain the value of a turnpike taken in eminent domain,
the returns by the officers of the road company to the State as to
the value of the capital stock are admissible. Plankroad Co. v.
Chester Co., 182 Pa. 40.
Admissions of a cashier binding on the bank. Bank v. Tyler, '6
W. & S. 373.
Attorneys and counselors. — Sohns v. McCulloh, 5 Pa. 473.
Admission of an attorney that a letter is genuine binds his client.
Overholzer v. McMichael, 10 Pa. 139.
Partners. — Admissions of one partner admissible against the
others. McCoy v. Lightner, 2 Watts, 347. But not to prove the
partnership except as against himself. Edwards v. Tracy, 62 Pa.
374; McNeilan's Estate, 167 Pa. 472.
Admissions of one partner after dissolution are not admissible
sigainst the others. Tasscy v. Church. 4 W. & S. 141; Hogg V. Or-
gill, 34 Pa. 344.
A retiring partner is not bound by the admissions of the remain-
ing partners made after hi* retirement. Wilson v. Waugh, 101 Pa.
233.
Joint owners — Authority. — Campbell v. Galbraith, 1 Watts, 70.
Statements of a coclaimanl arc admissible against another as
to boundary. Moore v. Pearson, W. & S. 51.
Declarations of one arc admissible against another jointly inter-
ested with him to show fraud. Schall v. Miller, 5 Whart. 156.
Admissions of one tenant in common are not admissible against
another. Pier v. Duff, 63 Pa. 59.
Chap. IV.] THE LAW OF EVIDENCE. 131
The admission of one devisee or legatee is not admissible against
another. Clark v. Morrison, 25 Pa. 453.
Joint debtors. — Acknowledgment or part payment by one joint
debtor will not take away the bar of the Statute of Limitations a»
against the others. Coleman V. Fobes, 22 Pa. 308; Bush v. Stowell,
71 Pa. 208.
Debtor and surety. — • Admissions of the principal debtor are admis-
sible against a guarantor or a surety. Meade v. McDowell, 5 Binn.
195 ; Com. v. Kendig, 2 Pa. 448 ; Respublica v. Davis, 3 Yeates, 128.
Husband and wife. — A husband is not his wife's agent in making
declarations as to her interest in property. Leedom v. Lcedom, 160
Pa. 273; Martin v. Rutt, 127 Pa. 380; Evans v. Evans, 155 Pa.
572. Either may be the other's agent under special circumstances.
See Sharpless v. Dobbins, 1 Del. Co. R. 25; Murphy v. Hubert, 10
Pa. 50.
Statements of a wife as agent of her husband. Steel v. Thomp-
son, 3 P. & VV. 34; Peck v. Ward, 18 Pa. 506.
Admissions of a wife in her husband's absence not competent
against him. Jones v. McKce, 3 Pa. 496.
Article 18.*
admission by strangers.
Statements by strangers to a proceeding are not relevant
as against the parties except in the cases hereinafter men-
tioned. 19
In actions against sheriffs for not executing process
against debtors, statements of the debtor admitting his debt
to be due to the execution creditor are deemed to be relevant
as against the sheriff. 20
* See Note XII.
WCoole v. Braharn, 1848, 3 Ex. 183. For a third exception, which
could hardly occur now, see Clay v. Langslow, 1827, M. & M. 45.
20 Kempland v. Macauley, 1791, Peake, 95; Williams v. Bridges,
1817, 2 Star. 42.
132 A DIGEST Oh [Part 1.
In actions by the trustees of bankrupts an admission by
the bankrupt of the petitioning creditor's debt is deemed to
be relevant as against the plaintiff. 21
AMERICAN NOTE.
General.
Authorities. — 1 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 675
et seq.; 2 Taylor on Evidence (Chamberlayne's 9th ed. ), sec. 759.
Statements by strangers. — Sustaining the text as to their in-
admissibility generally. Taylor v. Grand Trunk R. R. Co., 48 N.
H. 304, 2 Am. Rep. 229; Nelson v. Flint, 166 U. S. 276; Montgomery
v. Brush, 121 111. 513: Lyon v. Manning, 133 Mass. 439; Wilson v.
Boioden, 113 Mass. 422; Kafer v. Harlow, 5 Allen (Mass.), 348;
Kline v. Baker, 100 Mass. 61 ; Davis v. Kingsley, 13 Conn. 285.
Private boundaries. — See cases under Article 30.
Actions against officers. — (Second paragraph of text.) Hart v.
Stevenson, 25 Conn. 499. 506: Strong v. Wheeler, 5 Pick. (Mass.)
410; Pugh v. McRae, 2 Ala. 393.
Bankruptcy. — Carnes v. White, 15 Gray (Mass.). 378; Wellington
v. Jackson, 121 Mass. 157; Ramsbottom v. Phelps, 18 Conn. 278.
Other parties. — White Co. v. Gordon, 124 Ind. 495; Olney v. Jack-
son, 106 Ind. 286; Broun v. Kenyon, 108 Ind. 283.
The admissions of third parties are inadmissible. Carter v. Hill,
81 Mich. 275; Rosenbury v. Angell, 6 Mich. 508; Beebe v. Knapp,
js Mich. 53; Merriit v. Stebbins, 86 Mich. 342.
New Jersey.
Strangers. — Parol evidence of a confession of a paramour not. ad-
nii->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 <t seq.j
Augusta v. Windsor, 19 Me. 317; Lassone v. B., etc., R. R. Co., 66
N. H. 345; Bridgewater v. Roxbury, 54 Conn. 216; Terrill v. Beecher,
9 Conn. 344; House v. Bleak, 141 111. 290; Donovan v. B., etc., R. R.
Co., 158 Mass. 450; Pratt v. White, 132 Mass. 477; Miller v. Shay,
145 Mass. 162. But see Kaiser v. Alexander. 144 Mass. 71.
A shop-book, to be admissible, must have been kept in the regular
course of business, under such circumstances as to import trust-
worthiness. Its character in this regard is to be passed upon by
the judge. Riley v. Bochm, 167 Mass. 183.
A shop-book, kept by one who cannot write, consisting of mere
marks, is admissible. Miller v. Shay, 145 Mass. 162.
Entries duly authenticated are admissible even though they record
164 A DIGEST OF [Part I.
facts communicated by others. Smith v. Law, 47 Conn. 431; Har-
wood v. Mulry, 8 Gray (Mass.), 250.
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;
Chatcaugay Iron Co. v. Blake, 144 U. S. 476.
Time when made. — The entries must have been practically con-
temporaneous. Davis v. Sanford, 9 Allen (Mass.), 210; Bentley v.
Ward, 116 Mass. 333; Morris v. Briggs, 3 Cush. (Mass.) 342; Barker
v. Haskell, 9 Cush. (Mass.) 218; Chisholm v. Beaman Co., 160 111.
.101 : Hoover v. Gehr, 62 Pa. St. 136.
Or must be connected with contemporaneous entries by the testi-
mony of the one who transferred them. Kent v. Garvin, 1 Gray
(Mass.), 148; Whitney v. Sawyer, 11 Gray (Mass.), 242.
Books of original entry. — The book of original entries should be
produced. Stetson v. Wolcott, 15 Gray (Mass.), 545; Woolsey v.
Bohn, 41 Minn. 235; Bonnell v. Maicha, 37 N. J. L. 198 (day-book
and ledger) .
If the ledger is the book of original entry, it is admissible as such
Swain v. Cheney, 41 N. H. 232; Hoover v. Gehr, 62 Pa. St. 136:
Foxon v. Hollis, 13 Mass. 427 ; Bonnell v. Mawha, 37 N. J. L. 198
Authentication of book entries. — As to the authentication of en
tries in books, see Anderson v. Edwards, 123 Mass. 273; Pratt v.
White, 132 Mass. 477; Holbrook v. Gay, 6 Cush. (Mass.) 215;
Moots v. State, 21 O. St. 653.
Where the person who made entries which are admissible in evi-
dence is beyond the reach of process or is incompetent to testify, it
is the same as if he were dead, and his handwriting may be proved.
Bridgeuater v. Roxbury, 54 Conn. 216.
Books of account must be proved by the one making the entries, or
if he is dead, by his personal representative. Pratt v. White, 132
Mass. 477; Coggsicell v. Dollivcr, 2 Mass. 217; Prince v. Smith, 4
Mass. 455; Frye v. Barker, 2 Pick. (Mass.) 65; Mathes v. Robinson,
8 Mete. (Mass.) 269; Ball v. Gates, 12 Mete. (Mass.) 491; Gibson v.
Bailey, 13 Mete. (Mass.) 537; Arnold v. Sabin, 1 Cush. (Mass.) 531.
If the party is insane his guardian may prove them. Holbrook v.
Gay, 6 Cush. (Mass.) 215.
Illustration (d). — Kent v. Garvin, 1 Gray (Mass.), 148; Har-
in,nd v. Mulry, 8 Gray (Mass.), 250; Chaffee v. U. S., 18 Wall. 516,
.343: Thomas v. Price, 30 Md. 483.
Chap. IV.] THE LAW OF EVIDENCE. 165
Illustration (e). — Whitcher x. McLaughlin, 115 Mass. 167: Town-
send v. Pepperell, 99 Mass. 40; Kennedy v. Doyle, 10 Allen (Mass.),
161; Durfee v. Abbott, 61 Mich. 471; Blackburn v. Crawford's, 3
Wall. 175; Weaver v. Leiman, 52 Md. 708; Lttter v. GeTir, 105 Fa. St.
577.
Partnership books. — Partnership books are admissible in the same
way as those of an individual. Adams v. Bowerman, 109 N. Y. 23;
Buffalo, etc., Bank x. Guenther, 1 N. Y. Supp. 753.
They are competent in a suit between partners. Fairchild v. Fair-
child, 64 N. Y. 471, affirming 5 Hun, 407; Caldwell v. Lciber, 7 Paige,
483; Tan Bokkeleim v. Berdell, 3 N. Y. Supp. 333; Cheever v. Lamar,
19 Hun, 130.
In such a suit there is a prima facie presumption that they are
correct. Heart t v. Corning, 3 Pa:ge, 566; Cheever v. Lamar, 19
Hun, 130.
Preliminary proof. — Books of account are admissible in evidence
when proper foundation has been laid. Ruggles v. Gatten, 50 111.
412; Talliaferro v. Zt>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 ori<r-
inal instruments being accounted for. Bowers v. Van Winkle, 41
Ind. 432; Burns v. Harris, 66 Ind. 536; Winship v. Clendenning, 24
Ind. 439.
In order to render a record admissible the paper must be one
properly recorded. Westerman v. Foster, 57 Ind. 408.
As to verification under 3040, Burns, 1901, see TSlaanes v. State, 143
Ind. 299.
A lis pendens record is admissible. Ellison v. Braustrator, 153
Ind. 416.
An indorsement by a county recorder on an instrument filed for
record is admissible. Moore v. Glover, 115 Ind. 367.
The tract-book of a county recorder's office is admissible. Keesling
v. Truitt, 30 Ind. 306.
Official returns. — The acts of an officer may be shown by his re-
turn. Thurston v. Barnes, 10 Ind. 289.
The return of an officer is conclusive as against his surety. Bagot
v. State, 33 Ind. 262.
The conclusiveness of an officer's return applies only to acts which
he is required to perform. Lindley v. Kelley, 42 Ind. 294.
The return of an officer is admissible in his own favor. Splahn
v. Gillespie, 48 Ind. 397.
In a suit for false return, the return may be contradicted. Stock-
ton v. Stockton, 59 Ind. 574.
Survey. — Federal surveys of public lands are admissible. Doe v.
Hildreth, 2 Ind. 274.
Chap. IV.] THE LAW OF EVIDENCE. 205
Docket. — A justice docket is admissible. Redelsheimer v. Miller,
107 Ind. 485; Miller v. State, 61 Ind. 503.
Record of city council. — City of Huntington v. Mendenhall, 73 Ind.
460, 464; City of Lafayette v. Weaver, 92 Ind. 477, 479.
Transcript. — Justice transcripts are admissible. Fisher v. Hamil-
ton, 49 Ind. 341.
A justice transcript of another State is admissible. Ault v. Ze-
tiering, 38 Ind. 429; Dragoo v. Graham, 9 Ind. 212, 17 Ind. 427.
Authentication of records. — Original records must be properly
authenticated. Bridges v. Branan, 133 Ind. 488.
United States weather reports, see People v. Dow, 64 Mich. 717.
Marriage certificate. — People v. Innes, 110 Mich. 250; People v.
Loomis, 106 Mich. 250; People v. Isham, 109 Mich. 72.
New Jersey.
Books of a corporation. — The books of the corporation are the only
evidence of who are the stockholders and entitled to vote. In re
St. Laivrence Steamboat Co., \-\ N. J. L. 529.
The books of a corporation are not admissible to establish a right
in its favor against third persons. N. Riv. Meadow Co. v. Church, 22
N. J. L. 424; Wetherbee v. Baker, 35 N. J. Eq. 501.
The books of a corporation are admissible to prove the proceedings
of the corporation, but are not conclusive. N. Rio. Meadow Co. v.
Church, 2 Zab. 425; Van Hook v. Somerville Co., 5 N. J. Eq. 633,
reversing Id. 137: Black v. Lamb, 12 N. J. Eq. 109, S. C, 13 N. J. Eq.
456.
A certified copy of a report as to the financial condition of a cor-
poration not admissible. Whitaker v. Miller, 63 N. J. L. 587.
Stock-books as evidence. — G. S. 1895, "Corporations," 36.
Minutes of public meetings. — Minutes kept by school trustees are
admissible even though no law requires them to be kept. Gilbert v.
Van Winkle, 25 N. J. L. 73.
Book of minutes of a township meeting is admissible. Reeves v.
Ferguson, 31 N. J. L. 107.
Parish register. — The register of a parish of the Catholic Church
kept according to church rules is admissible. Hancock v. Catholic
Benev. Legion, 67 N. J. L. 614.
Records of boards of health as to deaths, marriages, and births.—
G. S. 1895, " Evidence," 60-62 ; * Marriages, Births, and Deaths," 23.
206 A DIGEST OF [Part I.
Family records. — A Bible is not admissible to prove a person's age
until it is shown to contain an authentic family record. Golden
Star Fraternity v. Conklin, 60 N. J. L. 565.
Instances.— Recitals in a deed issued by virtue of a sale under
statute made prima facie evidence of the proceedings under which
it was issued. Woodbridge v. Allen, 43 N. J. L. 262.
A sheriff's inventory made at the time of a levy on property is
admissible. Brewster v. Vail, 20 X. J. L. 56.
If the statute of another State provides that a transcript of the
record of a mortgage shall be admissible there, it will also be ad-
missible in New Jersey. Chase v. Caryl, 57 X. J. L. 545.
A book of registry is not competent to prove the existence or
contents of a mortgage. Harlcer v. Gustin, 12 X. J. L. 42.
A government gazette is not admissible to prove a fact of a private
nature. Brundred v. Del Hoyo, 20 X. J. L. 328.
Book of assessments of drainage commissioners is admissible. X.
Riv. Meadow Co. v. Shrewsbury Church, 2 Zab. 424.
A clergyman's certificate of baptism is not admissible to prove
date of birth. State v. Snover, 63 X. J. L. 383.
Foreign records. — Public records of foreign States, and copies
thereof. G. S. 1895, "Evidence," 58.
Notary's certificate. — Certificate of notary made conclusive evi-
dence. G. S. 1895, " Evidence," 20, 69.
Maryland.
Death register. — The death records of the registrar of vital statis-
tics are not admissible to prove that a person died of a certain
disease. Life Ins. Co. v. Anderson, 79 Md. 375.
Register of baptisms. — A baptismal register is admissible to prove
the date of a baptism if regularly kept by a clergyman as a part
of his ecclesiastical duty and produced from the proper custody.
^Yearcr v. Leiman, 52 Md. 708.
Entries in books of a corporation. — Hammond v. Strauss, 53 Md.
1; Weber v. Ficlcey, 47 Md. 196; Morrison v. Dorsey, 48 Md. 461.
Admissible as between the members; not as against others. Hager
v. Cleveland, 36 Md. 476.
Admissible as against a subscriber for stock. Frank v. Morrison,
58 Md. 423.
Books of a corporation are not admissible against a creditor
thereof. Roger v. Cleveland, 36 Md. 476.
Chap. IV.] THE LAW OF EVIDENCE. 207
The books of a corporation are not admissible in its favor as
against third persons. Brown v. State, 64 Md. 199.
Minutes of a board. — The minutes of a board of county commis-
sioners are admissible but may be contradicted. Milburn v. State,
55 Md. 11.
Notarial register. — Contemporaneous entries of a notary in the
usual course of his business, verified by the notary, are admissible.
Sasscer v. Bank, 4 Md. 409.
Marks on the ground by surveyors. — The fact that officers of the
U. S. Geological Survey have placed certain marks indicating dis-
tances above sea level is not admissible to prove such distances.
~New York, etc., R. Co. v. Jones, 94 Md. 24.
Pennsylvania.
Instances. — The minutes of a public board of commissioners are
admissible to prove what they transacted. Dougherty v. Piper, 3
Yeates, 290; Galbraith v. McGaio, Add. 305; Deal v. McCormick, 3
S. & R. 343; White v. Kyle, 6 S. & R. 107; Hoover v. Gonzalus, 11
S. & R. 314; Rose v. Klinger, 8 W. & S. 178.
Tax-books in a commissioner's olhce are official documents and are
admissible to prove facts stated therein. Fager v. Campbell, 5 Watts,
287; Overseers v. Overseers, 2 W. & S. 65; Yankirk v. Clark, 16
S. & R. 286; Cuttle v. Brockway, 24 Pa. 145; Scranton Dist. v.
Directors, 106 Pa. 446.
The original books of the county commissioners' office are admissi-
ble. Miller v. Hale, 26 Pa. 432. The clerk who made the entries
need not be called. Cuttle v. Brockicay, 24 Pa. 145.
Minutes of the board of surveys of Philadelphia. Wain v. Phila-
delphia, 99 Pa. 330.
Records of the land office to prove a survey. X orris v. Hamilton,
7 Watts, 91.
Papers in the office of a deputy surveyor made in performance of
his official duty. Lindsay v. Scroggs, 2 Rawle, 141.
Records of the land office are admissible to show the custom of
the office and that a warrant was not issued in accordance there-
with. Blackburn v. Holliday, 12 S. & R. 140; Goddard v. Gloninger,
5 Watts, 209.
The entry of an appointment in the register of Ihe Secretary of
State is admissible. Moore v. Houston, 3 S. & R. 169.
208 A DIGEST OF [Part I.
Legislative journals are admissible to identify a bill which has
been repealed. Bank v. Com., 26 Pa. 446.
A book of original entries may be admissible even though the one
making the entries did not have personal knowledge regarding them.
Imhoff v. Flewrer, 2 Phila. 35.
Notarial records and certificates evidence of the facts. — Pepper
& Lewis' Digest of Laws, " Evidence," sees. 44, 48, 50.
The registry of a deed in the office of a prothonotary is admis-
sible. Stonebreaker v. Short, 8 Pa. 155.
Certificate of a prothonotary indorsed on a deed is evidence of
acknowledgment. Dikeman v. Parrish, 6 Pa. 210.
Official and authorized records. — The document must be shown to
be official or it will not be admitted. Bank v. Donaldson, 6 Pa. 179.
Records not authorized by law are not admissible. Filler v. Shot-
well, 7 W. & S. 14.
Registers of deaths, baptisms, etc. — Registry of births and deaths
kept by a religious society are admissible when authenticated.
Stoever v. Whitman, 6 Binn. 416; II yam v. Edwards, 1 Dall. 2.
Register of marriages, baptisms, and burials of a parish is admis-
sible to prove pedigree. Kingston v. Lesley, 10 S. & R. 383.
Register of baptisms not admissible to prove age. Clark v. Trin-
ity Church, 5 W. & S. 266.
Health officers' records of marriages, births, and deaths. — Pepper
& Lewis' Digest of Laws, "Evidence," sec. 49; "Registration of
Marriages, Births, and Deaths," sees. 6, 17, 28.
Registers of burials out of the United States. — Pepper & Lewis'
Digest of Laws, " Evidence," sees. 45, 46.
Corporation books. — Books of a corporation are admissible against
the members of the corporation. Graff v. Pitts. & S. R. Co., 31
Pa. 489; Bavington v. Pitts, d S. R. Co., 34 Pa. 358; Bedford R. Co.
v. Bowser, 48 Pa. 29; Diehl v. Mut. Ins. Co., 58 Pa. 443.
A corporation's books are not admissible in its favor and against
third persons. Fleming v. "Wallace, 2 Yeates, 120.
Registers kept by religious societies made evidence. — Pepper &
Lewis' Digest of Laws, " Evidence," sees. 43, 47.
CHAP. IV.] THE LAW OF EVIDENCE. 209
Article 35.
relevancy of statements in works of history, maps,
charts, and flans.
Statements as to matters of general public history made
in accredited historical books are deemed to be relevant
when the occurrence of any such matter is in issue or is
or is deemed to be relevant to the issue ; but statements in
such works as to private rights or customs are deemed to
be irrelevant. 97
[Submitted'] Statements of facts in issue or relevant or
deemed to be relevant to the issue made in published maps
or charts generally offered for public sale as to matters of
public notoriety, such as the relative position of towns and
countries, and such as are usually represented or stated in
such maps or charts, are themselves deemed to be relevant
facts ; 98 but such statements are irrelevant if they relate to
matters of private concern, or matters not likely to be
accurately stated in such documents."
97 See cases in 2 Ph. Ev. 155-6, and Read v. Bishop of Lincoln,
[1892], A. C. 644, at pp. 652-654.
98 In R. v. Orton, maps of Australia were given in evidence to show
the situation of various places at which the defendant said he had
lived. In R. v. Jameson, Trial at Bar, 21 July, 1896, standard map9
of South Africa were admitted to show the general positions of the
places referred to: Phipson, p. 354.
99 E. g. a line in a tithe commutation map purporting to denote the
boundaries of A's property is irrelevant in a question between A and B
as to the position of the boundaries: Brailstreet. v. Hearfield, 1877,
5 Ch. Div. 709, and see Hammond v. Wilberforce 1854, 10 Ex. 390; and
R. v. Bergcr, [1894], 1 Q. B. 823. See, too, Phipson, pp. 333, 334.
14
210 A DIGEST OF [Part I.
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 139 and
497; 9 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 885 et seq.;
Abbott's Trial Evidence (2d ed.), p. 883.
As to first paragraph of text, see Woods v. Banks, 14 N. F.. 101.
Sustaining text so far as works by authors, long deceased, are
concerned; State v. Wagner, 6 Me. 178; Morris v. Harmer, 7 Pet.
554; Spalding v. Hedges, 2 Pa. St. 240, 243; Charlotte v. Chouteau,
30 Mo. 194.
An almanac is admissible. State v. Morris, 47 Conn. 179; Mun-
shower v. State, 55 Md. 11.
An encyclopaedia is not admissible to prove recent occurrences.
Whiton v. Albany, etc., Ins. Co., 109 Mass. 24.
A list of prices current may be admitted if proved to be reliable.
Whitney v. Thacher, 117 Mass. 523; Cliquot's Champagne, 3 Wall.
114; Seligman v. Rogers, 113 Mo. 642.
Maps, plans, photographs, etc. — Com. v. King, 150 Mass. 221.
Ancient maps, shown to be genuine, are competent evidence to»
prove matters relating to general or public rights. Lawrence v.
Tennant, 64 N. H. 532; Causland v. Fleming. 63 Pa. 36.
Of private boundary. Gibson v. Poor, 21 N. H. 440.
Private surveys are not admissible without proof of their correct-
ness. Whitehouse v. Beckford, 29 N. H. 471; Com. v. Switzer, 134
Pa. 383; Wilkinson v. State, 100 Ala. 23: Rowland v. McCoivn. 20
Ore. 538; Burwell v. Sneed, 104 N. C. 118.
An ancient layout of a highway by a proprietors' committee, with
evidence that it was recorded in the proprietors' book, and that tl:.e
land thus laid out has ever since been used as a highway, is ad-
missible to prove the existence, by dedication, of the highway, and
its width. State v. Merrit, 35 Conn. 315.
A survey found among the papers of a deceased surveyor, but
where there was no evidence that it was made from actual survey,
or at whose procurement, was held not admissible in evidence. Free
v. James, 27 Conn. 79.
Ancient maps, shown to be genuine, are competent evidence to
establish private boundary. Whitman v. Shaw, 166 Mass. 451.
Chap. J V.] THE LAW OF EVIDENCE. 211
A plan or picture is admissible if verified by proof. Blair v.
Pelham, 118 Mass. 420; Marcy v. Barnes, 16 Gray (Mass.), 161;
Bollenbeck v. Rowley, 8 Allen (Mass.), 473. Contra, Bearce v.
Jackson, 4 Mass. 408.
A map published by authority of the Legislature is admissible to
prove town boundaries. Com. v. King, 150 Mass. 221.
The judge is to pass upon the sufficiency of the verification. Blair
v. Pelham, 118 Mass. 420; Walker v. Curtis, 116 Mass. 98. See also
Com. v. Coe, 115 Mass. 481.
The admissibility of a photograph does not depend upon its
verification by the photographer, provided it is shown to be accu-
rate by any one competent to speak from personal observation. The
sufficiency of the verification is a preliminary question of fact for
the judge. McGar v. Borough of Bristol, 71 Conn. 652.
It is error to admit a photograph without verification. Cunning-
ham v. F. H. & W. R. R. Co., 72 Conn. 244.
Photographic views of the scene of an accident are admissible as
a representation of the place. Any difference that arises from the
views being taken at a different season of the year can be explained.
Dyson v. N. Y. d N. E. R. R. Co., 57 Conn. 24.
Scientific books. — Scientific books are net admissible, nor may
they be read in argument. Com. v. Wilson, 1 Gray (Mass.), 337;
Washburn v. Cuddihy, 8 Gray (Mass.), 430; Ashworth v. Kittridge,
12 Cush. (Mass.) 193, 59 Am. Dec. 178; Com. v. Sturtivant, 117
Mass. 122, 19 Am. Rep. 401 ; Com. v. Brown, 121 Mass. 69.
The reading to the court or jury of books recognized by experts
as authority may be allowed or refused in the exercise of judicial
discretion. Richmond' s Appeal, 59 Conn. 244.
Medical books. — Medical books are not competent evidence. Ash-
worth v. Kittridge, 12 Cush. (Mass.) 193, 59 Am. Dec. 178: Com. v.
Sturtivant, 117 Mass. 122; Com. v. Wilson, 1 Gray (Mass.), 337;
Fox v. Peninsular, etc., Works, 84 Mich. 676; Epps v. State, 102 Ind.
539; Gallagher v. Market St. R. Co., 67 Cal. 13: Boyle v. State, 57
Wis. 472, 46 Am. Rep. 41; Bales v. State, 63 Ala. 30; Burg v. Chi-
cago, etc., R. Co., 90 la. 106.
In some States standard medical works on insanity may be read to
the jury by the counsel for the accused, upon the question of his in-
sanity. State v. Hoyt, 46 Conn. 337.
212 A DIGEST OF [Part I.
This rule must be regarded as confined exclusively to cases where
the plea of insanity is interposed. Richmond's Appeal, 59 Conn.
244.
In examining a medical expert, counsel may read questions from
a medical book for the purpose of making himself understood.
Tompkins v. West, 56 Conn. 485. Nor may they be read to the
jury. Washburn v. Cuddihy, 8 Gray (Mass.). 430; Boyle v. State,
57 Wis. 472, 46 Am. Rep. 41: People v. Wheeler, 60 Cal. 581, 44
Am. Rep. 70.
An illustration in a medical book is not admissible. Ordioay v.
Haynes, 50 N. H. 159.
Law books. — The court, in its discretion, may allow books of
statutes to be read to the jury. Com. v. Hill, 145 Mass. 305. See
also Com. v. Porter, 10 Mete. (Mass.) 263; State v. Fitzgerald, 130
Mo. 407; People v. Anderson, 44 Cal. 65; Curtis v. State, 36 Ark.
284; Gregory v. Ohio River R. Co., 37 W. Va. 606; Blum v. Jones,
86 Tex. 492; Norfolk & Western R. Co. v. Harman's Admr., 83 Va.
553 (matter of right). But the reading of law books is prohibited
in some States. Lendbury v. Iron Mining Co., 75 Mich. 84; Steff en-
son v. Chicago, etc., R. Co.. 48 Minn. 285; Yarborough v. State, 105
Ala. 45.
It has been held that a reported case may be read to the jury in a
criminal case. State v. Hoyt, 46 Conn. 330: Wohlford v. People, 148
111. 296; Johnson v. Culver, 116 Ind. 278; Hudson v. Hudson, 90 Ga.
582 : State v. Whitmore, 53 Kan. 343.
An unofficial compilation of the laws of another State is not gen-
erally admissible. Bride v. Clark, 161 Mass. 130.
A printed book, purporting to be a copy of the statutes of an-
other State, is not evidence of such statutes. Bosticick v. Bogardus,
2 Root (Conn.), 250.
Histories. — Onondaga Nation v. Thatcher, 61 N. Y. Supp. 1027,
29 Misc. Rep. 428 : judgment affirmed in Onondaga Nation v. Thatcher,
(Sup. 1900), 65 X. Y. Supp. 1014 (concerning Indian relics) : Bo-
gardus v. Trinity Church, 4 Sandf. Ch. 633; McKinnon v. Bliss, 21
N. Y. 206, 216; Crill v. Rome, 47 How. Pr. 400.
A local history is not admissible. McKinnon v. Bliss, 21 N, Y.
206. 31 Barb. 180; Roe v. Strang, 107 N. Y. 350.
Tide tables. — Tide tables, calculated by scientific authors, are
competent evidence. Green v. Cornwell, 1 C. H. Rec. 11.
Chap. IV.] THE LAW OF EVIDENCE. 213
Life tables. — The Northampton tables are competent evidence,
upon the question as to the probable duration of a life. Schell v.
Plumb, 55 N. Y. 592, 46 How. Pr. 11; Sauter v. New York Central
Railroad Co., 6 Hun, 446, 66 N. Y. 50.
Prices-current. — Prices-current, published for public circulation, in
a newspaper, are admissible. Terry v. McNeil, 58 Barb. 241. Com-
pare Whelan v. Lynch, 60 N. Y. 469, affirming 65 Barb. 326.
Architect's schedule of charges. — The schedule of charges o£ the
American Institute of Architects is admissible to show the customary
and proper compensation. Gilman v. Stevens, 54 How. Pr. 197.
Photographs. — A photograph must be proved in order to be ad-
missible. C, C, C. & St. L. Ry. Co. v. Monaghan, 140 111. 474.
Photographs of an injured person, duly authenticated, are admis-
sible. People's Gaslight & Coke Co. v. Amphlett, 93 111. App. 194.
A photographic copy of a forged note is admissible in evidence.
Duffin v. People, 107 111. 113.
A photograph a year after the accident is not admissible, it not
being shown that no changes had occurred. Iroquois Furnace Co. v.
McCrea, 191 111. 340, 61 N. E. 79, affirming 91 111. App. 337.
Photographs of the place of an injury, duly authenticated, are
admissible. Wabash Ry. Co. v. Jenkins, 84 111. App. 511.
Photographs of the scene of an accident are admissible where no
changes have taken place. C: &■ E. I. R. R. Co. v. Lawrence, 96 111.
App. 635; Williams v. Carterville, 97 111. App. 160.
Stereoscopic views may be admissible in evidence. Rockford v.
Russell, 9 Brad. 229.
Abstract of title admissible. — Seaman v. Bisbce, 163 111. 91. Com-
pare Walton v. Follansbee, 165 111. 4S0.
Field notes. — Field notes are not admissible without authentica-
tion. Owens v. Crossett, 105 111. 354.
Plat admissible.— Prouty v. Tilden, 164 111. 163.
A plat of land duly authenticated is admissible. Wahl v. Lau-
bersheimei; 174 111. 338, 51 N. E. 860.
A town plat is admissible in evidence. Gould v. Howe, 131 111.
490, 496.
In questions of dower, life tables are admissible. McHenry v.
Yokum, 27 111. 160.
Annuity tables. — In accident cases, annuity tables are not ad-
missible to show expectancy of life. C, B. d- Q. R. R. Co. v. John-
son, 36 111. App. 564.
214 A DIGEST OF [Part I.
Meteorological observations. — Meteorological observations may be
admissible. C. & A". W. Ry. Co. v. Trayes, 17 111. App. 136, 139.
Price lists. — Price lists are not admissible upon questions of value.
Cook County v. Harmes, 10 Brad. 24.
Law books. — It has been held that a reported case may be read
to the jury in a criminal case. Wohlford v. People, 148 111. 296.
Stenographer's notes. — A stenographer having testified as to the
correctness of his notes may then read them. Higgins v. State, 157
Ind. 57; Keith v. State, 157 Ind. 37G.
The stenographer's report may be made a part of the record by
a bill of exceptions. Brehm v. State, 90 Ind. 140; Butler v. Roberts,
118 Ind. 481; Calvin v. State, 56 Ind. 51; Lee v. State, 88 Ind. 256;
Marshall v. State, 107 Ind. 173; Merrick v. State, 63 Ind. 327; Rail-
way Co. v. Voight, 122 Ind. 288; Wagoner v. Wilson, 108 Ind. 210;
Woolen v. Wishmier, 70 Ind. 108.
Medical and scientific books not admissible. — Epps v. State, 102
Ind. 539.
Reading from books and newspapers. — Counsel should not in gen-
eral be allowed to read extracts from other books or from news-
papers. Baldwin v. Bricker, S6 Ind. 221.
Statutes. — The Detroit city ordinances stand upon the same
footing with reference to proof as the statutes. Napinan v. People,
19 Mich. 352.
Statutes of other States.— Wilt v. Cutler, 38 Mich. 189; People
v. Colder, 30 Mich. 85; Kopke v. People, 43 Mich. 41. See Ellis v.
Maxson, 19 Mich. 186; People v. Lambert, 5 Mich. 349; Kermot v.
Ayer, 11 Mich. 181.
New Jersey.
Official maps. — Sharp's Book of Surveys is admissible in matters
concerning titles under the ^'est Jersey proprietors. Den. v. Pond,
C.'oxe, 379.
Mortuary tables. — To show probable duration of human life, a
standard mortuary table is admissible. Camden & Atl. R. Co. v.
Williams, Ul X. J. L. 646.
Books of science. — Books of science not admissible, but when a
witness quotes them as the basis of his opinion they may be ad-
mitted to contradict him. New Jersey Zinc Co. v. Lehigh Zinc Co.,
59 X. J. L. 189.
Chap. IV.] THE LAW OF EVIDENCE. 215
Printed copies of by-laws. — A printed copy of a by-law of a board
of freeholders is not admissible. Downie v. Freeholders, 54 N. J. L.
223.
Printed laws of this State.— G. S. 1895, "Statutes," 38.
Printed statutes and decisions of other States.— G. S. 1895,
"'Evidence," 22, 23, 05.
Maryland.
Maps. — A map is not admissible to prove boundary when it was
not made by public authority or proved to be correct. Tome Insti-
tute v. Davis, 87 Md. 591.
Medical books. — Treatise on medical jurisprudence not admissible
to support or contradict an expert. Davis v. State, 3S Md. 15.
Law books. — Printed statutes of other States may be read in evi-
dence to prove such statutes. Ilarryman v. Roberts, 52 Md. G4.
Printed laws. — Printed books to prove statutes and resolutions.
P. G. L. 1888, art. 35, sees. 47-49.
Almanac. — An almanac is admissible. Munshower v. State, 55
Md. 11.
System of measurement. — A brick mason may testify as to the
number of brick in a building from calculations based upon a system
of measurement adopted in Baltimore by the trade and found to be
correct. Donohue v. Shedrick, 46 Md. 226.
Pennsylvania.
Maps. — Ancient maps are evidence of boundary. Com. v. Philadel-
phia, 16 Pa. 79; Huffman v. McCrea, 56 Pa. 95.
Ancient maps, shown to be genuine, are competent evidence to
prove matters relating to general or public rights. Causland v.
Fleming, 63 Pa. 36.
Certified copies of Holmes's Map of Philadelphia, published in
1683 and on file in the office of the Surveyor-General, are admissible.
Vom. v. Alburger, 1 Whart. 469; Baird v. Rice, 63 Pa. 489. See
Farr v. Swan, 2 Pa. 245 ; Philadelphia v. Crump, 1 Brewst. 320.
A copy of an official map is not admissible without accounting
for the absence of the original. Com. v. Sicitzer, 134 Pa. 383.
Surveys. — Official surveys admitted in evidence. Fothcrgill v.
Stover, 1 Dall. 6; Leazare v. Hillegas, 7 S. & R. 313; Shields v.
Buchanan, 2 Yeates, 219; Harris v. Monks, 2 S. & R. 557; Reynolds
v. Dougherty, 3 S. & R. 325; Philips v. Shaffer, 5 S. & R. 215; Creek
210 A DIGEST OF [Part I.
v. Moon, 7 S. & R. 330; Funston v. McMahon, 2 Yeates, 245; Clem-
mins v. Gottshall, 4 Yeates, 330.
An official survey is admissible to prove boundary without pro-
ducing the warrant in pursuance of which it was made. Miller v.
Keene, 5 Watts, 348. But there must be some proof that it is
official. Yickroy v. Skelley, 14 S. & R. 372; Blackburn v. Holliday,
12 S. & R. 140; Wilson v. Stoner, 9 S. & R. 39.
An official survey is admissible to prove the location of land.
Canal Co. v. Dunkel, 101 Pa. 103.
Memorandum in the warrant-book of a deceased deputy surveyor
as to a warrant is admissible. Ross v. Rhoads, 15 Pa. 103.
A draft of adjoining lands, certified by the Surveyor-General is
admissible to prove location and boundary. Payne v. Craft, 7
W. & S. 458; Sweigart v. Richards, 8 Pa. 430; Gratz v. Beates, 45
Pa. 495.
Field notes and plats of a deputy surveyor are admissible. Boyles
v. Johnston, 6 Binn. 125; Hoover v. Gonzalus, 11 S. & R. 314; Mc-
Cormick v. McMurtrie, 4 Watts, 192.
Unofficial surveys are not admissible. Hubley v. White, 2 Yeates,
133 ; Hubley v. Vanhorne, 7 S. & R. 185 ; McKenzie v. Crow, 4 Yeates.
428; Farley v. Lenox, 8 S. & R. 392.
A survey is unofficial, though made by a deputy surveyor, if it
was outside his official duty. Salmon v. Ranee, 3 S. & R. 311.
Private surveys are not admissible without proof of their correct-
ness. Com. v. Switzer, 134 Pa. 383.
Life tables. — Carlisle tables are admissible to prove probable du-
ration of life but are not conclusive. Shippen's Appeal, 80 Pa. 391.
Carlisle tables admissible on question of probable duration of
life, but the jury's attention should be directed to all the special cir-
cumstances. Scifred v. Railroad Co., 200 Pa. 399.
Mortality tables are not admissible to show expectancy of life in
the absence of proof of the basis of the table and from what material
it was made. McKenna v. Gas Co., 198 Pa. 31; Kerrigan v. Railroad
Co., 194 Pa. 98.
Law books. — The authenticated reports of the highest court of
Virginia received to rebut the presumption that Virginia law is the
same as that of Pennsylvania. Musscr v. >Stauffcr, 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; TWii<e v. Weatherbee, 126 Mass. 450; J5Hss v. 2V. F. Cent,
ft. ft. Co., 160 Mass. 447, 455; Fuller v. Shattuck, 13 Gray (Mass.),
70; Miller v. Miller, 150 Mass. Ill; Bradley v. Brigham, 149 Mass.
141; Bigelow v. Winsor, 1 Gray (Mass.), 299.
A judgment is conclusive as to facts within the issues and actually
litigated. Parol evidence is admissible to prove what was litigated.
Embden v. Lisherness, 89 Me. 578; Campbell v. Rankins, 99 U. S.
261; Title Co. v. Shallcross, 147 Pa. St. 385; Palmer v. Sanger, 143
111. 34; Harding v. Bader, 75 Mich. 323; SJowe v. £*. Louis Stamping
Co., 155 Mass. 267.
In a subsequent suit on the same cause of action, a judgment is
conclusive as to all matters within the issues, which might have
been litigated, whether they actually were or not. Bassett v. Conn.
Riv. ft. ft. Co., 150 Mass. 179; Foye v. Patch, 132 Mass. 110; Ben-
nett v. Hood, 1 Allen (Mass.), 47; Horner v. Fish, 1 Pick. (Mass.)
435; Wright v. Anderson, 117 Ind. 315; Diamond State Iron Co. v.
Rarig, 93 Va. 595; Petersine v. Thomas. 28 O. St. 596; Fwnfc v. Funk,
35 Mo. App. 246.
If the second suit is upon a different cause of action, the judgment
is conclusive only as to matters actually litigated, not as to those
which might have been litigated. Foye v. Patch, 132 Mass. 106;
Gilbert v. Thompson, 9 Cush. (Mass.) 348; Morse v. Elms, 131 Mass.
151: Evans v. Clapp, 123 Mass. 165; Newell v. Carpenter, 118 Mass.
411: Sibley v. Hulbert, 15 Gray (Mass.). 509: Norton v. Huxley, 13
Gray (Mass.), 285; Gage v. Holmes, 12 Gray (Mass.). 428; Burnett
v. Smith. 4 Gray (Mass.), 50; Norton v. Doherty, 3 Gray (Mass.),
372; Metcalf v. Gilmore, 63 N. H. 174, 181; Nesbitt v. Riverside
Chap. IV.] THE LAW OF EVIDENCE. 227
Dist., 144 U. S. 610; Hixson v. Ogg, 53 0. St. 361; Wright v. Griffey,
147 111. 496; Bond v. Markstrum, 102 Mich. 11.
A judgment at law or decree in equity of a court having juris-
diction is conclusive between the parties to it and their privies, upon
every material fact in issue, and cannot be collaterally impeached.
Peck v. Woodbridge, 3 Day (Conn.), 36; Canaan v. Greenwoods
Turnpike Co., 1 Conn. 6; Willey v. Paulk, 6 Conn. 75; Griswold v.
Bigelow, 6 Conn. 264; Sears v. Terry, 26 Conn. 280, 282; McLoud
v. Selby, 10 Conn. 396; Holcomb v. Phelps, 16 Conn. 131; Ormsbee v.
Davis, 16 Conn. 576. But where jurisdiction can be obtained only
through the actual existence of some fact, a decree by a court which
decides that such fact exists can be attacked collaterally and shown to
be invalid. Scott v. McNeal, 154 U. S. 34. See People's Sav. Bank
V. Wilcox, 15 R. I. 258; Noble v. Union River Co., 147 U. S. 165, 173.
A judgment is conclusive as to facts within the issues and actually
litigated. Parol evidence is admissible to prove what was litigated.
Boxce v. Wilkins, 105 X. Y. 322. See Lewis v. Ocean Nav. Co., 125
ST. Y. 341.
In a subsequent suit on the same cause of action a judgment is
conclusive as to all matters within the issues, which might have been
litigated, whether they actually were or not. Secor v. Sturgis, 16
N. Y. 548; Pray v. Hegeman, 98 N". Y. 351; Farrington v. Payne, 15
Johns. 432; Stevens v. Lockwood, 13 Wend. 644; Schopen v. Bald-
win, 83 Hun, 234; Binck v. Wood, 43 Barb. 315. This includes
grounds of recovery or defense, permissible under the issues, but
not presented by a defendant in the former suit. White v. Mrrritt,
7 N. Y. 352; Malloney v. Horan, 49 N. Y. Ill; Reich v. Cochran,
151 N. Y. 122. But set-off and recoupment, not previously pleaded,
may be the subject of an independent suit, if their recovery is not
inconsistent with the findings of the former judgment. Brown v.
Gallaudet, 80 1ST. Y. 413; Malloney v. Horan, 49 X. Y. Ill; Yates v.
Fassett, 5 Den. 21, 29, 30. If pleaded and determined, a subsequent
action cannot be had thereon. Patrick v. Shaffer, 94 N. Y. 423.
If the second suit is upon a different cause of action, the judgment
is conclusive only as to matters actually litigated, not as to those
which might have been litigated. See cases above.
Conclusive judgment. — But a conclusive judgment, barring another
action, must be a final decision on the merits. Webb v. Buckelew, 82
N. Y. 555. A nonsuit is not such a decree. Wheeler v. Ruckeman,
51 X. Y. 391. Nor a discontinuance. Locb v. Willis, 100 X. Y. 231.
228 A DIGEST OF [Pabt 1.
Nor the sustaining of a plea in abatement. Springer v. Bien, 128
N. Y. 99. Nor a decree where an action was prematurely brought.
Rose v. Haicley, 141 N. Y. 366. Nor where there is a verdict, but no
judgment entered. Springer v. Bien, 128 N. Y. 99.
A judgment is conclusive as to facts within the issues and actually
litigated. Parol evidence is admissible to prove what was litigated.
Palmer v. Sanger, 143 111. 34.
If the second suit is upon a different cause of action, the judg-
ment is conclusive only as to matters actually litigated, not as to
those which might have been litigated. Wright v. Griffey, 147 111.
496.
The identity of parties in different suits may be shown by parol
evidence. HeacocJc v. Lubiikee, 108 111. 641.
Former recovery may be shown under the general issue. Warren
v. McNulty, 2 Gilm. 355.
Where a judgment does not indicate clearly the point involved,
outside evidence is competent. Ryan v. Potwin, 62 111. App. 134.
Judicial proceedings cannot be questioned collaterally. Gage v.
Parker, 103 111. 528; Keith v. Keith, 104 111. 398.
Judgments conclusive between the parties. — Bates v. Spooner, 45
Ind. 489; Campbell v. Cross, 39 Ind. 155; Gavin v. Graydon, 41 Ind.
559; Hackleman v. Harrison, 50 Ind. 156; Kress v. State, 65 Ind.
106; Larr v. State, 45 Ind. 364; Pressler v. Turner, 57 Ind. 56.
In a subsequent suit on the same cause of action, a judgment is
conclusive as to all matters within the issues, which might have
been litigated, whether they actually were or not. Wright v. Ander-
son, 117 Ind. 315; Lieb v. Lichtenstein, 121 Ind. 483; Goble v. Dil-
lon, 86 Ind. 327.
A judgment is a bar only as to matters in issue. Winship v.
Winship, 43 Ind. 291.
So as to parties brought into a suit on motion. City v. Wickwire,
87 Ind. 77; White v. Webster, 58 Ind. 233; Broicn v. Eaton, 98 Ind.
591.
Persons are bound by judgments only in the character in which
they appear as parties litigant. Lord v. Wilcox, 99 Ind. 491; Elliott
v. Frakes, 71 Ind. 412.
A judgment may be admissible, even though it is not conclusive.
Clrrclnnd v. Ohcnchain, 107 Ind. 591.
Whore the issues of a case involve the record of a former pro-
ceeding, sue!: record, or parts thereof relevant to the issues, may
Chap. IV.] THE LAW OF EVIDENCE. 229
be introduced in evidence. Kramer v. Williamson, 135 Ind. 655,
660.
In order to render a record admissible, it should show that the
court had jurisdiction. Cline v. Gibson, 23 Ind. 11; Phelps v. Til-
ton, 17 Ind. 423.
A bill of exceptions is admissible to show the identity of the
subject-matter of two suits. Miles v. Wingate, 6 Ind. 458.
In an action by an attorney-at-law for professional services ren-
dered in a certain case, the record of the cause of action is ad-
missible in evidence as part of the history of the case, showing the
amount of recovery, and the services rendered. McFadden v. Ferris,
6 Ind. App. 454, 455.
In such an action the judgment is admissible in evidence as a
part of the record, not being subject to the objection of want of
mutuality, as such rule only applies when it is sought to bind a
party by the recitals of the judgment. McFadden v. Ferris, 6 Ind.
App. 454, 457.
The record of a justice of the peace is competent evidence of the
proceedings had in a suit before him. Redelsheimer v. Miller, 107
Ind. 485, 489.
Judge's notes of evidence. — The judge's notes of evidence are not
ordinarily admissible as evidence in the trial of another issue.
Citizen's State Bank v. Adams, 91 Ind. 280, 287.
New Jersey.
Facts in issue. — A former decree or judgment is not conclusive
as to any matter unless that matter was in issue. Richmond v.
Hays, 3 N. J. L. 492.
A judgment is conclusive as to facts upon which it must have
been based. Trustees v. Stocker, 42 N. J. L. 115.
Judgment of court of competent jurisdiction, on question of fact
or law, while unreversed is binding upon parties and their privies.
Paterson v. Baker, 51 N. J. Eq. 40.
In a second action for the same claim, the former judgment is
final as to anything which might have been litigated in the first
action; but where the second action is for a different claim, the
judgment is final only as to such matters as actually were litigated.
Id.
230 A DIGEST OF [Paut I.
Judgment by default. — A judgment by confession or default is
as conclusive as other judgments. Cook v. Mct'ahill, 41 N. J. Eq.
69; Gifford v. Thorn, 9 N. J. Eq. 702.
Instances. — A corporation is concluded by a judgment in a suit
brought against it by one stockholder, in other suits of a similar
character brought by other stockholders. Willoughby v. Chicago
June, etc., Co., 50 N. J. Eq. 656.
A settlement by one joint tort-feasor bars a suit against another ;
and a decree that such a settlement was not obtained by fraud is
conclusive in favor of the others. Spurr v. Railroad Co., 56 N. J. L.
346.
A judgment is binding on a wife, though not made a formal party,
if she causes her husband to defend the case in her behalf and as
her agent. Lyon v. Standford, 42 N. J. Eq. 411.
The determination of the Orphans' Court as to the amount charged
against executors is presumed to be correct. Vanpelt v. Veghte, 2
Green, 210.
A judgment in attachment does not conclude the defendant as
to the debt for which it was entered. SchencJc v. Griffin, 38 N. J. L.
462.
In interpleader by an owner to determine how much a contractor
owes a subcontractor, a subsequent default judgment by the latter
against the former is not conclusive. Norcross v. Dillon, 32 Atl. 701.
Interlocutory order not conclusive. — Selz v. Presburger, 49 N. J. L.
396.
A dismissal in equity, when not on the merits, is no bar. Hen-
ninger v. Heald, 51 N. J. Eq. 74.
As to the effect of a judgment in an action where evidence inad-
missible in this action was received, see Putnam v. Clark, 34 N. J.
Eq. 532.
Statute. — Failure to plead plene administravit is not conclusive
evidence of a devastavit. G. S. 1895, " Evidence," 18.
Maryland.
Authorities. — Clagett v. Easterday, 42 Md. 617; Butler v. State,
5 G. & J. 511; Hitch v. Davis, 8 Md. 524.
The fact that the form of the second action is different from that
of the first makes no difference. Walsh v. Chesapeake R. Co., 59
Md. 423.
When in an injunction proceeding it is decided that the barn
bring built by defendant is not on plaintiff's land, such decision is
Chap. IV.] THE LAW OF EVIDENCE. 231
conclusive in «a later action brought on the injunction bond for dam-
ages. Lange v. Wagner, 52 Md. 310.
An order approving an auditor's account is a decretal order and
the matters become res ad judicata. Lindsay v. Kirk, 95 Md. 50;
Bank v. Heller, 94 Md. 213.
Matters in issue. — Whitehurst v. Rogers, 38 Md. 503 ; Robertson
v. Parks, 70 Md. 118.
Judgment conclusive as to matters that were in issue. Clagett
v. Easterday, 42 Md. 017.
The construction given a deed in a judgment is conclusive as be-
tween the parties. Oursler v. B. & 0. R. Co., 00 Md. 358.
A judgment on the merits in the same cause of action is con-
elusive as between the parties in a subsequent action. Beall v.
J'carre, 12 Md. 550.
A judgment is conclusive upon parties and privies as to all ques-
tions adjudicated. Barrick v. Horner, 78 Md. 253.
Matters that might have been determined. — As between the par-
ties, a judgment is conclusive of all matters which might have been
litigated in the suit, where every claim made in the second suit
might have been made in the first. Brown v. State, 64 Md. 199;
Archer v. State, 74 Md. 410; Wagoner v. Wagoner, 76 Md. 311.
A decree is conclusive upon the parties as to all matters that
could and should have been presented. Royston v. Horner, 86 Md.
249.
Collateral matters. — A judgment is not conclusive as to matters
only incidentally or collaterally involved, even though passed upon.
Sivgery v. Atty.-Gen., 2 Har. & J. 487.
A judgment is not conclusive as to any matter not in issue. Oar-
rott v. Johnson, 11 G. & J. 173; Cecil v. Cecil, 19 Md. 72.
Who are concluded by the judgment. — Joint parties in interest
having knowledge of the suit are bound by the judgment. Albert
v. Hamilton, 76 Md. 304.
Parties to a proceeding are those having a right to control them,
to defend, to examine witnesses, and to appeal. Cecil v. Cecil, 19
Md. 72.
Privies are concluded by a judgment equally with parties. Cecil
v. Cecil, 19 Md. 72; Keene v. Van Reuth, 48 Md. 184.
One who seeks payment out of funds obtained through a decree
in an action between others will not be allowed afterward to im-
peach the decree. Bank v. Thomas, 37 Md. 246.
232 A DIGEST OF [Paet I.
Sureties on a guardian's bond are bound by the judgment in an
action against the guardian, if they appear and take part by counsel.
Parr v. State, 71 Md. 220.
One participating in an action as an attorney held to be concluded
by the decree. Kerr v. Bank, 18 Md. 396.
Instance of a judgment binding on one not a party thereto but
directly interested. Savin v. Bond, 57 Md. 228.
A judgment against a debtor is conclusive of the fact of the debt
as against a garnishee. Summers v. Obcrndorf, 73 Md. 312.
Judgment by default. — Judgment by default is conclusive on the
parties. Walsh v. Mclntire, 68 Md. 402.
Pennsylvania.
Authorities. — Bickford v. Cooper, 41 Pa. 142; Marsteller v. Mar-
steller, 132 Pa, 517.
In malicious prosecution, the record is admissible to show ac-
quittal and that the defendant was prosecutor. Katterman v. Stit-
zer, 7 Watts, 189.
Conviction in a criminal proceeding for reckless driving is not
admissible in an action against the driver by a person injured.
Summers v. Brewing Co., 143 Pa. 114.
A judgment by confession or default is held to be conclusive on
the parties. Orr v. Fire Ins. Co., 114 Pa. 387; ^Yearer v. Adams,
132 Pa. 392; Stayton v. Graham, 139 Pa. 1; Spring Run Co. v.
Tosier, 102 Pa. 342.
Judgment on demurrer for defendant on the merits is not a bar
to a new action on the same allegations so amended as to present
a good cause of action. Detrick v. Sharrar, 95 Pa. 521.
Interlocutory judgment as a bar. FrauenthaVs Appeal, 100 Pa.
290.
One who submits his claim to a competent court and has it adju-
dicated cannot inter be heard as to the same matter in another court
or another form of action. Otterson v. Gallagher, 88 Pa. 355; Alii
V. Goodhart, 161 Pa. 455; Com. v. Comrcy, 174 Pa. 355; Westcott
v. Edmunds, 68 Pa. 34.
Circumstances under which a dismissal of a petition to open a
judgment is not conclusive of the facts upon which the petition
was based. Himes v. Kiehl, 154 Pa. 190.
A judgment is conclusive as to all matters actually raised in the
suit and all which might have been raised by the exercise of due
Chap. IV.] THE LAW OF EVIDENCE. 233
diligence in preparing and trying the case. Fidelity Co. v. Gazzam,
2 Pa. Dist. 569; Pennock v. Kennedy, 153 Pa. 579.
A recital in a judgment that it was given to secure payment of
purchase money of real estate is conclusive upon the parties. Haw-
bickers Estate, 6 Pa. Co. Ct. 570.
Matters in issue. — Judgment conclusive as to all facts actually
decided. White v. Reynolds, 3 P. & W. 96.
If they do not appear upon the record they may he shown by parol ;
but such evidence is not allowed to contradict the record. Roberts
v. Orr, 56 Pa. 176; Title Co. v. Shallcross, 147 Pa, 485; Follansbee
v. Walker, 74 Pa. 306.
A judgment is conclusive as to all matters directly involved in
the proceeding. Wetherald v. Van Stavoren, 125 Pa. 535; Donaghy
v. Gill, 152 Pa. 92; Kilhcffcr v. TIerr, 17 S. & R. 319. But not as
to matters only indirectly or collaterally involved even though they
were passed on. Blackmore v. Gregg, 10 Watts, 222; Lentz v. Wal-
lace, 17 Pa. 412; Tarns v. Lewis, 42 Pa. 402; Appeal of Lewis, 67
Pa. 153; Carmack v. Com., 5 Binn. 184; Howe v. Bank, 1 Atl. 7S7.
A judgment is conclusive of every fact upon which it must have
been founded. Hamner v. Griffith, 1 Grant, 193; Cypheri v. Ma-
chine, 22 Pa. 195; Overseers v. Overseers, 95 Pa. 269.
Ejectment. — Recovery in ejectment is conclusive of title as be-
tween parties and privies. Levers v. Van Buskirk, 4 Pa. 309. But
see Eichert v. Schaeffer, 161 Pa. 519, and Stevens v. Hughes, 31
Pa, 381.
The former action must have involved the same parties, the same
land, nnd the same title. Chase v. Irwin, 87 Pa. 286.
In ejectment against a landlord in possession by the purchaser
at sheriff's sale of the leasehold estate, a judgment in ejectment,
prior to such sheriff's sale, against the tenant and in favor of the
landlord, is conclusive in the latter's favor. Seltzer v. Bobbins, 181
Pa. 451.
Persons concluded. — A judgment is conclusive against the heirs
of a party and all claiming under him. Merklein v. Trapnell, 34 Pa.
42; Straycr v. Johnson, 110 Pa. 21; Reagan v. Grim, 13 Pa. 508;
Follansbee v. Walker, 74 Pa. 306.
The real party in interest who conducts the action is concluded
by the judgment though he be not a nominal party. Peterson v.
Lothrop, 34 Pa. 223; Appeal of Dutch Church, 88 Pa. 503.
234 A DIGEST OF [Part I.
A judgment against a beneficiary is admissible as against the
trustee in another suit, the parties being substantially the same.
Calhoun v. Dunning, 4 Dall. 120.
Judgment against one in a representative capacity held binding
on him individually. Miller v. Springer, 88 Pa. 203; Com. v. Coch-
ran, 146 Pa. 223.
One who appears merely as a witness is not concluded by the
judgment. In re Miller's Estate, 159 Pa. 562.
Article 42.
statements in judgments irrelevant as between
strangers, except in admiralty cases.
Statements contained in judgments as to the facts upon
which the judgment is based are deemed to be irrelevant
as between strangers, or as between a party, or privy, and
a stranger, except 19 in the case of judgments of Courts of
Admiralty condemning ship as a prize. In such cases the
judgment is conclusive proof as against all persons of the
fact on which the condemnation proceeded, where such
fact is plainly stated upon the face of the sentence.
Illustrations.
(a) The question between A and B is, whether certain lands in Kent
had been disgavelled. A special verdict on a feigned issue between
C and D ( strangers to A and B ) finding that in the 2nd Edw. VI. a
disgavelling Act was passed in words set out in the verdict is deemed
to be irrelevant.20
(6) The question is, whether A committed bigamy by marrying B
during the lifetime of her former husband C.
19 This exception is treated by Lord Eldon as an objectionable
anomaly in Lothian v. Henderson, 1803, 3 Bos. & Pul. at p. 545. See,
too, Castrique v. Imrie, 1870, L. R. 4 E. & I. App. 434-5.
20 Doe v. Rrydges, 1843, 6 M. & G. 282.
Chap. I V.J THE LAW OF EVIDENCE. 233
A decree in a suit of jactitation of marriage, forbidding C to claim to
be the husband of A, on the ground that he was not her husband, is
deemed to be irrelevant.2i
(c) The question is, whether A, a shipowner, has broken a warranty
to B, an underwriter, that the cargo of the ship whose freight was
insured by A was neutral property.
The sentence of a French prize court condemning ship and cargo, on
the ground that the cargo was enemy's property, is conclusive proof in
favour of B that the cargo was enemy's property (though on the facts
the Court thought it was not). 22
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed. ), sees. 523, 525,
526, 535, 543, 544, 545, 556; Underbill on Evidence, sec. 1506;
Lord v. Chadbounte, 42 Me. 429, 66 Am. Dec. 290; Woodruff v.
Taylor, 20 Vt. 65.
privisies admits of this exception, that one may agree to stand in
I he place of another and to be so fully answerable for his debt or
unlawful ast as that a judgment against the latter shall conclude
the former as to the amount of such debt or damages. Levick v.
Norton, 51 Conn. 470.
Criminal sentences are not evidence in civil issues, the parties
being different, and the objects and results of the two proceedings
equally diverse. Betts v. New Hartford, 25 Conn. 180; State v.
/!r<t<ln<ui:, 69 Conn. 215.
The converse of this rule, namely, that a judgment in a civil
action is not admissible in a subsequent criminal prosecution, is
equally true. State v. Bradnack, 69 Conn. 215.
Strangers. — Brigham v. F oyer weather. 140 Mass. 414 (quoting
this article) ; Wing v. Bishop, 3 Allen (Mass.). 456; Wood v. Mann,
125 Mass. 319; Eastman v. Symonds, 108 Mass. 567; Nettleton v.
Beach, 107 Mass. 499: Finn v. Western Railroad, 102 Mass. 283;
Leonard v. Bryant, 11 Mete. (Mass.) 370; Shrewsbury v. Boylston,
I Pick. (Mass.) 105; Tyler v. Utmer, 12 Mass. 163; Perkins v. Pitts,
II Mass. 125; Ashmead v. Colby, 26 Conn. 315; Beers v. Broome, 4
21 Duchess of Kingston's Case, 1776. 2 S. L. C. 713.
22 Geyer v. Aguilar, 1798, 7 T. R. 681.
236 -1 DIGEST OF [Part I.
Conn. 256, 257; Betts v. Neic Hartford, 25 Conn. 185; Stevens v.
Curtiss, 3 Conn. 265; Fowler v. Savage, 3 Conn. 96; Hough v. Ives,
l Root (Conn.), 492; Edey v. Williams, 1 Root (Conn.), 186; South-
tngton Eccl. Soc. v. Qridley, 20 Conn. 202; Fowler v. Collins, 2 Root
(Conn.), 231; McLoud v. &e%, 10 Conn. 396; Railroad Co. v. Aa/.
Bowfc, 102 U. S. 14; Jones v. Vert, 121 Ind. 140.
Admiralty. — Sustaining text. Baxter v. A en; fin^r. /ns. Co., 6
Mass. 277. See dishing v. LenVd, 107 U. S. 09, 80.
Whenever a Court of Admiralty in one country acting as a prize
court decides on the question of prize, and condemns captured prop-
erty, such sentence or decree is conclusive evidence of the character
of the property, when brought in question in any other country
recognizing the law of nations. Broicn v. Union Ins. Co., 4 Day
(Conn.), 187.
The decree of a foreign Court of Admiralty, condemning a ship as
prize, cannot be called in question here and impeached collaterally
for fraud in procuring it. Stewart v. Warner, 1 Day (Conn.), 148.
Judgments in rem. — Judgments in rem are conclusive as to every-
body. Shores v. Hooper, 153 Mass. 228; Brigham v. Fayerweather,
140 Mass. 411, 413; Gelston v. Hoyt, 3 Wheat. (U. S.) 246.
A judgment in rem is deemed irrelevant to establish any fact not
appearing from the proceedings to have been directly in issue be-
fore and decided by the court even though the fact must have been
assumed in arriving at the judgment. Lea v. Lea, 99 Mass. 493,
96 Am. Dec. 772, and note.
An attachment suit against a nonresident possesses the character
of an in rem proceeding, the res comprising the property attached.
McKinney v. Collins, 88 N. Y. 216. But decisions relative to personal
status, in some cases, are conclusive only within the State wherein
the decision is rendered. People v. Baker, 76 N. Y. 78.
New Jersey.
Strangers. — A judgment is not binding upon one a stranger to it.
Cox v. Flanagan, 2 Atl. 33; Lehigh Zinc Co. v. New Jersey Zinc Co.,
55 N. J. L. 350; S. C, on appeal, 28 Atl. 79; Prall v. Patton. 3
N. J. L. 570; Steward v. Middleton, 17 Atl. 294; Insurance Co. v.
Jackson, 31 N. J. Eq. 50.
A judgment against the survivors of a partnership does not bind
the representatives of a deceased partner. Buckingham v. Ludlum,
37 N. J. Eq. 137.
Chap. IV.] THE LAW OF EVIDENCE. 237
A judgment binds only parties and privies, and is not even evi-
dential against others. Lehigh Z. d I. Co. v. New Jersey Zinc & I.
Co., 55 N. J. L. 350.
To prove title. — The existence of a judgment as a part of a chain
of title may be shown by the record even in controversies with third
persons. Den. v. Hamilton, 7 Hal. 109.
Evidence of a judgment was admitted as against a stranger to
show title to personal property. Vandoren v. Bellis, 7 N. J. L. 137.
Personal status. — A judgment as to personal status, e. g., divorce,
is similar to a judgment in admiralty. McClurg v. Terry, 21 N. J.
Eq. 225.
Statute. — Conviction for embezzlement, etc., not to be proved in
a civil action to recover the money. G. S. 1895, " Crimes," 159.
Maryland.
A judgment is not binding on one not a party or privy to it.
Dorsey v. Gassaway, 2 Har. & J. 402; McKim v. Mason, 3 Md. Ch.
186; McClellan v. Kennedy, 8 Md. 230; Cockcy v. Milne's Lessee, 16
Md. 200; Cecil v. Cecil, 19 Md. 72; Miller v. Johnson. 27 Md. 6;
Bank v. Inloes, 7 Md. 380; Syester v. Bracer, 27 Md. 288.
A decree is not admissible as against a stranger to prove the facts
upon which it was founded. Parr v. State, 71 Md. 220.
One in possession of land cannot be dispossessed under a decree in
an action to which he was not a party. Tongue v. Morton, 6 Har.
& J. 21; Frazer v. Palmer, 2 Har. & G. 469; Oliver v. Caton, 2 Md.
Ch. 297.
A judgment does not conclude a party to it as against a stranger.
Heaver v. Lanahan, 74 Md. 493.
A judgment is not an estoppel against a party if it is not such
an estoppel against the one seeking to take advantage of it. Gro-
shon v. Thomas, 20 Md. 231.
Pennsylvania.
Authorities. — A judgment is not binding on strangers to it. Rose
v. Klinger, 8 W. & S. 178; Building Assn. v. O'Connor, 3 Phila.
453; Kanffelt v. Leber, 9 W. & S. 93; Davidson v. Barclay, 63 Pa.
406. Even though the same title be in dispute. Timbers v. Katz,
W. & S. 290.
238 A DIGEST OF [Paet I.
A decree declaring a mortgage a first lien is not binding on a
prior lienor who was not a party or privy to the decree. Railway
Co. v. Marshall, 85 Pa. 187.
Where one recovers judgment against a railroad company for a
fire caused by its negligence, such judgment is not conclusive as
between the party getting it and an insurance company. /Etna Ins.
Co. v. Confer, 158 Pa. 598.
Foreign attachment is not such a proceeding in rem that the judg-
ment will conclude strangers in the matter of the title to the prop-
erty attached. Megee v. Beirne, 39 Pa. 50.
Article 43.
effect of judgment not pleaded as an estoppel.
If a judgment is not pleaded by way of estoppel it is as
between parties and privies deemed to be a relevant fact,
whenever any matter, which was, or might have been decided
in the action in which it was given, is in issue, or is or is
deemed to be relevant to the issue, in any subsequent pro-
ceeding.
Such a judgment is conclusive proof of the facts which
it decides, or might have decided, if the party who gives
evidence of it had no opportunity of pleading it as an
estoppel.
Illustrations.
(a) A sues B for deepening the channel of a stream, whereby the
flow of water to As mill was diminished.
A verdict recovered by B in a previous action for substantially the
same cause, and which might have been pleaded as an estoppel, is
deemed to be relevant, but not conclusive in B's favour. 2 ^
(b) A sues B for breaking and entering A's land, and building
23 Vooght v. Winch, 1819, 2 B. & Aid. 662; and see Feversham v.
Emerson, 1855, 11 Ex. 391.
Chap. IV.] THE LAW OF EVIDENCE. 239
thereon a wall and a cornice. B pleads that the land was his, and ob-
tains a verdict in his favour on that plea.
Afterwards B's devisee sues A's wife (who on the trial admitted that
she claimed through A) for pulling down the wall and cornice. As the
first judgment could not be pleaded as an estoppel (the wife's right not
appearing on the pleadings), it is conclusive in B's favour that the
land was his.24
AMERICAN NOTE.
General.
Authorities. — 9 Encyclopaedia of Pleading and Practice, pp. 613,
618; 1 Greenleaf on Evidence (15th ed.), sec. 531, and notes; Per-
kins v. Walker, 19 Vt. 144; Gray v. Pingry, 17 Vt. 424.
It is generally held in this country that the judgment is con-
clusive, whether pleaded or not, and whether or not there was an
opportunity to plead it. 1 Greenleaf on Evidence (15th ed.), sec.
531, and notes; Gray v. Pingry, 17 Vt. 419; Whitney v. Clarendon,
18 Vt. 252; Mussey v. White, 58 Vt. 45; Perkins v. Walker, 19
Vt. 114; Chamberlain v. Carball, 26 N. H. 540; Gove v. Lyford, 44
N. H. 528; Blain v. Blain, 45 Vt. 538; Whitney v. Bergcr, 78 Lie.
287 ; Walker v. Chase, 53 Me. 258 ; Westcott v. Edmunds, 68 Pa. St.
34; Trayhem v. Colburn, 66 Md. 277; So. Pac. R. Co. v. U. S., 168
U. S. 1. Even if a foreign judgment. Whiting v. Berger, 78 Me. 287.
No opportunity to plead. — King v. Chase, 15 N. H. 9, 41 Am. Dec.
675; Chase v. Walker, 26 Me. 555; Isaacs v. Clark, 12 Vt. 692;
Perkins v. Walker, 19 Vt. 144; Dame v. Wingate, 12 N. H. 291;
Morgan v. Burr, 58 N. H. 470; Shelton v. Alcox, 11 Conn. 240; Bell
v. Raymond, 18 Conn. 97; Howard v. Mitchell, 14 Mass. 242; Adams
v. Barnes, 17 Mass. 365; Sprague v. Waite, 19 Pick. (Mass.) 455;
Meiss v. Gill, 44 0. St. 253 ; Wixson v. Devine, 67 Cal. 341 ; Porter v.
Leache, 56 Mich. 40 ; Howe v. Minn. Mills Co., 44 Minn. 460 ; Porter
v. Leache, 56 Mich. 40.
A judgment may be placed in evidence without being specially
pleaded if it is desired to be used as evidence of a material fact in
issue; not, however, as an estoppel or bar to the action. Krikeler v.
Ritter, 62 N. Y. 372.
24 Whitaker v. Jackson. 1864, 2 H. & C. at p. 926. This had previ-
ously been doubt ed. See 2 Ph. Ev. 24. n. 4.
240 A DIGEST OF [Part I.
New Jersey.
Pleading. — Pleading a judgment as a bar. Reeves v. Townsend,
22 N. J. L. 396.
Evidence. — A judgment is admissible in evidence. Dean v.
Thatcher, 32 N. J. L. 470.
A judgment maj' be given in evidence if there was no chance to
plead it. Ward v. Ward, 22 N. J. L. 699.
Maryland.
Authorities. — A judgment need not be pleaded by way of estoppel.
Beall v. Pearre, 12 Md. 550.
It is generally held in this country that the judgment is conclusive,
whether pleaded or not, and whether or not there was an opportunity
to plead it. Trayhem v. Colbum, 66 Md. 277.
Insufficient pleading of a former judgment. Brooke v. Gregg, 89
Md. 234.
A judgment is not matter for plea in abatement but in bar. Bank
of U. 8. V. Merchants' Bank, 7 Gill, 415.
Pennsylvania.
A judgment of a competent court on a point in issue is a bar when
pleaded or conclusive when given in evidence. Hibshman v. Dulle-
ban, 4 Watts, 183; Westcott v. Edmunds, 68 Pa. 34; Railroad Co.
v. Malone, 85 Pa. 25.
Verdict of a jury is not admissible in evidence to create an estoppel
until judgment is entered thereon. Dougherty v. Lehigh C. & N.
Co., 202 Pa. 635.
Article 44.
judgments generally deemed to be irrelevant as
between strangers.
Judgments are not deemed to be relevant as rendering
probable facts which may be inferred from their existence,
but which they neither state nor decide —
as between strangers ;
as between parties and privies in suits where the issue is
different even though they relate to the same occurrence or
subject-matter;
Chap. IV.] THE LAW OF EVIDENCE. 241
or in favour of strangers against parties or privies.
But a judgment is deemed to be relevant as between
strangers :
(1) if it is an admission, or
(2) if it relates to a matter of public or general interest,
so as to be a statement under Article 30.
Illustrations.
(a) The question is, whether A has sustained loss by the negligence
of B, his servant, who has injured C's horse.
A judgment recovered by C against A for the injury, though con-
clusive as against B, as to the fact that C recovered a sum of money
from A, is deemed to be irrelevant to the question, whether this was
caused by B's negligence.25
( b ) The question whether a bill of exchange is forged arises in an
action on the bill. The fact that A was convicted of forging the bill is
deemed to be irrelevant. 20
( c) A collision takes place between two ships A and B, each of which
is damaged by the other.
The owner of A sues the owner of B, and recovers damages on the
ground that the collision was the fault of B's captain. This judg-
ment is not conclusive in an action by the owner of B against the
owner of A, for the damage done to B.2" [Semble, it is deemed to be
irrelevant.] 28
(d) A is prosecuted and convicted as a principal felon.
B is afterwards prosecuted as an accessory to the felony committed
by A.
The judgment against A is deemed to be irrelevant as against B,
though A's guilt must be proved as against B.29
2 5 Green v. New River Company, 1792, 4 T. R. 589. (See Article
40, Illustration (a).)
26 Per Blackburn, J., in Castrique v. Imrie, 1870, L. R. 4 E. & I.
App. at p. 434.
27 The Calypso, 1856, 1 Swab. Ad. 28.
28 On the general principle in Duchess of Kingston's Case, 1776, 2
Smith's L. C. 713.
29 Semble from R. v. Turner, 1832, 1 Moo. C. C. 347.
16
242 A DIGEST OF [Part I.
(e) A sues B, a carrier, for goods delivered by A to B.
A judgment recovered by B against a person to whom he had de-
livered the goods, is deemed to be relevant as an admission by B that
he had them.30
(/") A sues B for trespass on land.
A judgment, convicting A for a nuisance by obstructing a highway
on the place said to have been trespassed on is [at least] deemed to be
relevant to the question, whether the place was a public highway [and
is possibly conclusive]. 31
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 522 et
seq.; Underhill on Evidence, sec. 1506.
Sustaining text. King v. Chase, 15 N. H. 9, 41 Am. Dec. 675.
Bartlett v. Boston Gas Co., 122 Mass. 209; Burlen v. Shannon,
99 Mass. 200, 96 Am. Dec. 733; Burlen v. Shannon, 14 Gray (Mass.),
433.
A judgment against one of several joint-feasors is a defense
in a suit against the others only if satisfied. Cleveland v. Bangor,
87 Me. 259; The Beaconsfield, 158 U. S. 303; Leither v. Phil. Traction
Co., 125 Pa. St. 397; Roodhouse v. Christian, 158 111. 137 ; Savage v.
Stevens, 128 Mass. 254.
It has been sometimes held that sureties on official bonds are
concluded by judgments against their principals. Tracy v. Good-
win, 5 Allen (Mass.), 409; McMicken v. Com., 58 Pa. St. 213; Stoval
v. Banks, 10 Wall. 583; Nevitt v. Woodburn, 160 111. 203; Norris v.
Mersereau, 74 Mich. 687 (prima facie evidence only) ; Tute v. James,
50 Vt. 124.
A judgment against certain joint contractors constitutes a bar to a
suit against the other if they were within the jurisdiction. Kingsley
v. Davis, 104 Mass. 178.
A judgment against one of several persons, jointly and severally
liable in contract, is a defense in a suit against the others only
if satisfied. Sawyer v. White, 19 Vt. 40.
30 Tilly v. Cowling, 1701, Buller, N. P. 242, b. ; 1 Ld. Raymd. 744.
siPetrie v. Nuttall, 1856, 11 Ex. 569.
Chap. IV.] THE LAW OF EVIDENCE. 243
A judgment against a party in his personal capacity is not bind-
ing on him in a suit wherein he appears in a representative capacity.
Landers v. Arno, 65 Me. 26 ; New Haven v. Chidsey, 68 Conn. 397.
Strangers. — Grand Trunk R. R. Co. v. Latham, 63 Me. 177; Bur-
dick v. Norwich, 49 Conn. 225.
A judgment against an indorser, unsatisfied, does not bar an
action against the acceptor or maker. Gilmore v. Carr, 2 Mass.
171; Railroad Co. v. Nat. Bank, 102 U. S. 14.
A criminal judgment is not admissible in a civil suit unless it
comes within the exception of the text. State v. Bradnack, 69
Conn. 212; People v. Kenyon, 93 Mich. 19; Corbley v. Wilson, 71 111.
209.
Issues different. — Norton v. Huxley, 13 Gray (Mass.), 285: Burlen
v. Shannon, 99 Mass. 200; Coleman's Appeal, 62 Pa. St. 252; Russell
v. Place, 94 U. S. 606.
One cannot avail himself of a judgment in his own favor in a
suit which he brings as an assignee of a cause of action assigned to
him after the rendition of the judgment. Fuller v. Metropolitan
Life Ins. Co., 68 Conn. 55.
Admissions. — Parsons v. Copeland, 33 Me. 370, 54 Am. Dec. 628;
Craig v. Carleton, 8 Shepl. (Me.) 492; Kellenberger v. Sturtevant,
7 Cush. (Mass.) 465; Rudolph v. Landwerlen, 92 Ind. 34; St. Louis
Ins. Co. v. Cravens, 69 Mo. 72.
Matter of public interest. — People v. Buckland, 13 Wend. 594.
New Jersey.
Authorities. — Kutzmeyer v. Ennis, 27 N. J. L. 371; Newman v.
Fowler, 37 N. J. L. 89.
A judgment as to a thing immaterial to the issue is no bar in a
subsequent action. Munday v. Vail, 34 N. J. L. 418.
Where A is primarily liable and B has agreed to indemnify him,
a judgment against A in a suit of which B had notice is competent
evidence in a suit by A against B on the contract of indemnity.
Hoppaugh v. McGrath, 53 N. J. L. 81.
Judgment against a principal not conclusive against a surety as
general rule. Ball v. Chancellor, 47 N. J. L. 125.
244 A DIGEST OF [Part I.
Maryland.
A contract of employment for one year at $50 per week is an
entire contract. Upon a wrongful discharge the employee has only
one action for damages. A judgment for one week's wages for the
week succeeding the discharge bars any action for further damages.
Ohnstead v. Bach, 78 Md. 132.
Pennsylvania.
Strangers. — Timbers v. Katz, 6 W. & S. 290; Sample v. Coulson,
9 W. & S. 62; Brookville v. Arthurs, 130 Pa. 501.
A judgment against one of several joint-feasors is a defense in a
suit against the others only if satisfied. Leither v. Philadelphia
Traction Co., 125 Pa. 397.
A judgment against a principal is not generally conclusive against
a surety. Giltinan v. Strong, G4 Pa. 242.
It has been sometimes held that sureties on official bonds are con-
eluded by judgments against their principals. McMicken v. Com.,
58 Pa. 213.
In an action on a bill of exchange, the fact that a person was con-
victed of forging the bill is not admissible. Earger v. Thomas, 44
Pa. 128.
Issues different. — Coleman's Appeal, 62 Pa. 252.
A judgment is not conclusive as to matters only to be argu-
mentatively inferred. Lentz v. Wallace, 17 Pa. 412; Schwan V.
Kelley, 173 Pa. 65.
Article 45.
judgments conclusive in favour of judge.
When any action is brought against any person for any-
thing done by him in a judicial capacity, the judgment deli-
vered, and the proceedings antecedent thereto, are conclusive
proof of the facts therein stated, whether they are or are not
necessary to give the defendant jurisdiction, if, assuming
them to be true, they show that he had jurisdiction.
Chap. IV.] THE LAW OF EVIDENCE. 245
Illustration.
A sues B (a justice of the peace) for taking from him a vessel and
500 lbs. of gunpowder thereon. B produces a conviction before him-
self of A for having gunpowder in a boat on the Thames (against
2 Geo. III. c. 28).
The conviction is conclusive proof for B, that the thing called a boat
was a boat.32
AMERICAN NOTE.
General.
Authorities. — 1 Wharton on Evidence, sec. 813.
Piper v. Pearson, 2 Gray (Mass.), 120. See Ex parte Sternes, 77
Cal. 156; Otis v. The Rio Grande, 1 Woods (U. S.), 279. See Ear-
man v. Brotherson, 1 Den. 537; People v. Collins, 19 Wend. 56, 62.
Generally the decision of a court as to a fact which is required to
be ascertained and settled before jurisdiction of a case can be taken
is final and protects parties acting thereunder, until directly reversed
or vacated. Colton v. Beardsley, 38 Barb. 29, 51; Dyckman v. Mayor
of New York, 5 N. Y. 434, 440. See Austin v. Vrooman, 128 N. Y.
229; Bolton v. Shriever, 135 N. Y. 65.
If, however, a court tries to acquire jurisdiction by assuming by
a decision that a fact, which must actually exist to give jurisdiction,
does exist, its proceeding is null and subject to collateral attack.
Roderigas v. East River Sav. Inst., 63 N. Y. 460, 464; People v. Bd.
of Health, 140 N. Y. 1; Miller v. Amsterdam, 149 N. Y. 288. See
McLean v. Jephson, 123 N. Y. 142.
Maryland.
Authorities. — An inferior judge, acting within his jurisdiction,
cannot be made a trespasser for enforcing his judgment even though
it is erroneous. Deal v. Harris, 8 Md. 40. See also Hiss v. State. 24
Md. 556.
MBrittain v. Kinnaird, 1819, 1 Brod. & Bing. 432.
240 A DIGEST OF [Part I
Article 46.
fraud, collusion, or want of jurisdiction mat be
PROVED.
Whenever any judgment is offered as evidence under
any of the articles hereinbefore contained, the party against
whom it is so offered may prove that the Court which gave
it had no jurisdiction, or that it has been reversed, or, if he
Hs a stranger to it, that it was obtained by any fraud or
collusion, to which neither he nor any person to whom he
is privy was a party. 33
If an action is brought in an English Court to enforce the
judgment of a foreign Court, and probably if an action is
brought in an English Court to enforce the judgment of
another English Court, any such matter as aforesaid may be
proved by the defendant, even if the matter alleged as fraud
was alleged by way of defence in the foreign Court and was
not believed by them to exist. 34
AMERICAN NOTE.
General.
Authorities. — 1 Wharton on Evidence, sec. 797 ; 17 Am. & Eng.
Encyclopaedia of Law (2d ed.), pp. S4S, 1047 et seq.
A judgment at law or decree in equity of a court having juris-
diction is conclusive between the parties to it and their privies,
upon every material fact in issue, and cannot be collaterally im-
peached. Wight v. Mott, Kirby (Conn.), 154; Peck v. Woodbridge,
8 Day (Conn.), 36; Canaan v. Greenwoods Turnpike Co., 1 Conn. 6;
33 Cases collected in 2 Taylor, ss. 1715, 1716, 1721. See, too, 2 Ph.
Ev. 2.T. 70. and Ochsenbein v. Papelier, 1873, 8 Ch. App. 695.
34 Aboulnff v. Oppcnheimer, 1882, 10 Q. B. D. 295.
Chap. IV.] THE LAW OF EVIDENCE. 247
Willey v. Paulk, 6 Conn. 75; Griswold v. Bigelow, 6 Conn. 264;
Sears v. Terry, 26 Conn. 280, 282; McLoud v. SeZ&i/, 10 Conn.
396; Eolcomb v. Phelps, 16 Conn. 131; Ormsbee v. Davis, 6 Conn.
576; Huntington v. Birch, 12 Conn. 152.
Want of jurisdiction. — Any one may attack a judgment for want
of jurisdiction. Love joy v. Albce, 33 Me. 414, 54 Am. Dec. 630;
Penobscot It. R. Co. v. Watson, 52 Me. 456; Buffum v. Ramsdell, 55
Me. 252, 92 Am. Dec. 5S9; Smith v. Knoiclton, 11 N. H. 19; Kit-
tredge v. Emerson, 15 N. H. 227; WiZ&tw v. Ab6o£, 60 N. H. 40;
Eastman v. Dearborn, 63 N. H. 364; State v. Wakefield, 60 Vt.
010; Barrett v. Crane, 16 Vt. 246; Vaughn v. Congdon, 56 Vt.
Ill, 4S Am. Rep. 758; Ada»is v. Cowles, 95 Mo. 501; Sandwich Co.
v. Bar?, 56 Minn. 390; J &iZ« v. City Ca6 Co., 79 Cal. 188; FeopZe v.
-S'cetye, 146 111. 189; Wall v. IFaH, 123 Pa. 545. See McClanahan
v. IFesr, 100 Mo. 309.
A stranger can attack a judgment collaterally for want of juris-
diction. Bitffum v. Ramsdell, 55 Me. 252.
Unless one has been served or made appearance he is a stranger.
Safford v. Weare, 142 Mass. 231; Needham v. Thayer, 147 Mass. 536;
Eliot v. McCormick, 144 Mass. 10; Martin v. Kittredge, 144 Mass.
13; Fa« .tfiyer v. i2iZei/, 140 Mass. 488. See also Sumner v. Parker,
7 Mass. 78.
A domestic judgment may be attacked collaterally for lack of
jurisdiction. .FaW River v. Riley, 140 Mass. 488.
In some States a justice court is a court of record. Hendrick
v. Whittemore, 105 Mass. 23, 28.
In others it is an inferior court. Fahcy v. Mottee, 67 Md. 250;
Clayborn v. Tompkins, 141 Ind. 19.
Full jurisdiction must embrace the parties, the subject-matter,
and the process. Scars v. Terry, 26 Conn. 280.
The recitals of the judgment of a Superior Court are conclusive
upon the parties in considering jurisdictional questions. Blaisdell
v. Pray, G8 Me. 269, 272; Culver's Appeal, 48 Conn. 165, 173; Coit
V. Haven, 30 Conn. 190; Finneran v. Leonard, 7 Allen (Mass.). 54.
A probate court is not a court of general jurisdiction. Fowle v.
Coe, 63 Me. 248; People's Savings Bank v. TFiZcoa;, 15 R. I- 258 ;
Sears v. Terrt/, 26 Conn. 273. See Smith v. WiWman, 178 Pa. 245,
Compare Macey v. Stark, 116 Mo. 481; Clark v. Costello, 59 N. J.
L. 234; State v. Mobile, etc., R. Co., 108 Ala. 29, 30.
248 A DIGEST OF [Pabt I.
The jurisdiction of inferior courts is not presumed, but must be
made to appear. Coit v. Haven, 30 Conn. 190; Galpin v. Page, 18
Wall. 350; Fahey v. Mottee, 67 Md. 250; Smith v. Clausmeier, 136
Ind. 120; State v. Mobile, etc., It. Co., 108 Ala. 31; Richardson v.
Seevers, 84 Va. 259.
The jurisdiction of courts of limited and inferior jurisdiction
can be collaterally attacked, and if the want of jurisdiction in fact
exists, the judgment is an absolute nullity. Culver's Appeal, 48
Conn. 173.
Fraud. — A party cannot attack a judgment collaterally for fraud
aliunde the record; a stranger can. Davis v. Davis, 61 Me. 395;
Granger v. Clark, 22 Me. 128; Smith v. Abbott, 40 Me. 442; Siden-
sparkcr v. Sidensparker, 52 Me. 481, 83 Am. Dec. 527; Blanchard
v. Webster, 62 N. H. 468; Great Falls Mfg. Co. v. Worster, 45 N.
H. 110; Atkinson v. Allen, 12 Vt. 620, 36 Am. Dec. 361; Ogle v.
Baker, 137 Pa. 378; In re Burdick, 162 111. 48; Greene v. Greene, 2
Gray (Mass.), 361, 61 Am. Dec. 454; Homer v. Fish, 1 Pick. (Mass.)
435. 11 Am. Dec. 218; M'Rae v. Mattoon, 13 Pick. (Mass.) 57;
Downs v. Fuller, 2 Mete. (Mass.) 135, 35 Am. Dec. 393; Vose Y.
Morton, 4 Cush. (Mass.) 27.
Reversal. — The fact that the court which gave judgment has been
reversed may be proved. Smith v. Frankfield, 77 N. Y. 414.
But during the pendency of an appeal the judgment continues to
have the effect of an estoppel. Parkhurst v. Berdell, 110 N. Y. 386.
New Jersey.
Lack of jurisdiction. — A judgment may be impeached collaterally
for lack of jurisdiction. Hess v. Cole, 23 N. J. L. 116 (of the per-
son) ; McCahill v. Life Assur. Soc., 26 N. J. Eq. 531.
Though a judgment is not admissible to prove a fact over which
the court had no jurisdiction, yet it is admissible in so far as it
decides questions over which the court had jurisdiction. Williamson
v. Gordon, Spen. 77. See Davis v. Headley, 22 N. J. Eq. 115.
Lack of jurisdiction may be proved. Bray v. Neill, 21 N. J. Eq.
343.
Fraud. — A stranger may attack a judgment collaterally for fraud.
Yanderveere v. Gaston, 24 N. J. L. 818.
Fraud in securing a judgment, when a party was not able to de-
fend in the original suit on that ground and was without fault him-
Chap. IV.] THE LAW OF EVIDENCE. 249
self, will justify equity in setting aside the judgment. Doughty v.
Doughty, 27 N. J. Eq. 315.
Grounds of collateral attack. — Defective service of process is not
ground for collateral attack. Dickinson v. Trenton, 33 N. J. Eq. G3.
Judgment against A in a court of general jurisdiction in which he
was never served with process but in which an attorney appeared for
him without authority cannot be impeached by him collaterally but
may be in a direct proceeding. Mutual Life Ins. Co. v. Pinner, 43
N. J. Eq. 52.
A judgment cannot be collaterally attacked by showing that it was
based on a gambling contract. McCanless v. Smith, 51 N. J. Eq. 505.
A judgment which is relevant as evidence cannot be objected to on
the ground of irregularity or error. Stothoff v. Dunham, 4 Harr.
181; Lutes v. Alpaugh, 3 Zab. 165; Hendrickson v. Norcross, 19
N. J. Eq. 417; Diehl v. Page, 3 N. J. Eq. 143; Obert v. Hammel, 18
N. J. L. 73.
Decree may be attacked collaterally on the ground that it was a
usurpation. Young v. Rathbone, 16 N. J. Eq. 224; Munday v. Vail,
34 N. J. L. 418.
Orphans' Court decree. — Orphans' Court is one of superior juris-
diction in New Jersey. Clark v. Costello, 59 N. J. L. 234; Den. v.
Hammel, 3 Harr. 73; Den. v. O'Hanlon, 1 Zab. 582; Hess v. Cole, 3
Zab. 116; Quidort's Admr. v. Pergeaux, 18 N. J. Eq. 472; Plume v.
Howard Sav. Inst., 46 N. J. L. 211.
Decree of Orphans' Court that due notice was given of a final
settlement is conclusive. Boulton v. Scott, 3 N. J. Eq. 231.
Orphans' Court decree on the probate of a will is not admissible
to prove invalid a will of real estate in an action of ejectment.
Den. v. Ayres, 1 Green, 153; Cozens v. Colson, Pen. 877; Hazen v.
Tillman, 5 N. J. Eq. 363.
Miscellaneous. — A judgment is conclusive even though erroneous.
Manley v. Mickle, 53 N. J. Eq. 155.
Judgment in a court of law is conclusive of the fact in a court of
equity. Phillips v. Pullen, 45 N. J. Eq. 830.
Judgment of a justice court conclusive. Van Doren v. Horton,
25 N. J. L. 205.
The verity of the record of a judgment cannot be attacked by
proving the minutes of the court. Den. v. Doicnam, 1 Green, 135.
250 A DIGEST OF [Part I.
Maryland.
Lack of jurisdiction. — A judgment may be attacked collaterally
for lack of jurisdiction. Baltimore v. Porter, 18 Md. 284.
The jurisdiction of inferior courts is not presumed, but must be
made to appear. Fahey v. Mottee, 67 Md. 250.
A decree of a court of equity cannot be impeached collaterally in
a court of law when there was jurisdiction. Gardiner v. Miles, 5
Gill, 94.
Judgment of Orphans" Court is conclusive as to matters within its
jurisdiction. Bhultz v. Houck, 29 Md. 24.
Fraud and error. — A judgment cannot be attacked collaterally for
frand by the parties or their privies. Taylor v. State, 73 Md. 208.
The judgment of a court having jurisdiction cannot be attacked
for mere irregularity. Long v. Long, 62 Md. 33.
A judgment cannot be impeached collaterally for mere error.
Gordon v. Baltimore, 5 Gill, 231 ; Barrick v. Horner, 78 Md. 253.
Judgment reversed. — A reversed judgment is no evidence. Rich-
ardson v. Parsons, 1 H. & J. 253.
Pennsylvania.
Want of jurisdiction. — Any one may attack a judgment for want
of jurisdiction. Wall v. Wall, 123 Pa. 545.
Want of jurisdiction may be shown in a collateral action to im-
peach a judgment. Forster's Estate, 2 Lane. L. Rev. 206.
A void judgment concludes no one. Caldwell v. Walters, 18 Pa. 79.
A decree on a rule to show cause why a judgment should not be
set aside on the ground of fraud is conclusive. Haneman v. Pile,
161 Pa. 599; Heilman v. Kroh, 155 Pa. 1.
Character of the court. — Judgment of a court of probate is con-
clusive as to matters within its jurisdiction. Vensel V. Coiner, 31
Leg. Int. 373. See Smith v. Wildman, 178 Pa, 245.
A decree of the Orphans' Court as to matters within its jurisdic-
tion is as conclusive as that of other courts. McPherson v. Cunliff,
11 S. & R. 422; Painter v. Henderson, 7 Pa. 48; Lockhart v. John,
7 Pa. 137; Torrance v. Torrance, 53 Pa. 505; Brooks' Estate, 8 Pa.
Co. Ct. 514; H err v. Herr, 5 Pa. 428.
Judgments of a court of merely statutory jurisdiction are just as
conclusive as those of other courts. Billings v. Russell, 23 Pa. 189.
Fraud. — A party cannot attack a judgment collaterally for fraud
aliunde the record; a stranger can. Ogle v. Baker, 137 Pa. 378.
Chap. IV. J THE LAW OF EVIDENCE. 251
A judgment may be attacked collaterally by a stranger for fraud
or collusion. Sager v. Mead, 164 Pa. 125; Rowland's Estate, 1 Pa.
L. J. 312; Phelps v. Benson, 161 Pa. 418; Appeal of McNaughton,
101 Pa. 550; Woodward v. Schmitt, 5 Phila. 152.
Creditors may attack a judgment collaterally for fraud or collu-
sion. Watson v. Willard, 9 Pa. 89; Appeal of Thompson, 57 Pa. 175;
Appeal of Nat. Bank, 85 Pa. 528; Appeal of McNaughton, 101 Pa.
550; Appeal of Meckley, 102 Pa. 536.
Mere error or irregularity. — A judgment is conclusive even though
erroneous. Gratz v. Bank, 17 S. & R. 278; Myers v. Clark, 3 W. & S.
535.
A judgment of a court with jurisdiction cannot be attacked col-
laterally for mere irregularity. Lewis v. Smith, 2 S. & R. 142;
Cyphert v. McClune, 22 Pa. 195; Yaple v. Titus, 41 Pa. 195.
A judgment cannot be collaterally attacked on the ground of de-
fective service. Sloan v. McKinstry, 18 Pa. 120; Cockley v. Rehr,
12 Pa. Co. Ct. 343.
A decree of distribution of the Orphans' Court cannot be col-
laterally attacked by showing want of actual notice. Ferguson v.
Yard, 164 Pa. 586.
A judgment cannot be attacked collaterally on the ground that it
was rendered against one after his death. Yaple v. Titus, 41 Pa.
195; Carr v. Townsend, 63 Pa. 202; Murray v. Weigle, 118 Pa. 159.
Article 47.
foreign judgments.
The provisions of Articles 40-46 apply to such of the
judgments of Courts of foreign countries as can by law be
enforced in this country, and so far as they can be so
enforced. 35
35 The cases on this subject are collected in the note on the Duchess
of Kingston's Case, 2 Smith's L. C. 765-800. A list of the cases will
be found in Roscoe's N. P. 203-205. The last leading cases on the
subject are Goddard v. Gray, L. R. 6 Q. B. 139, and Castrique v. Imrie,
1870, L. R. 4 H. L. 414. See. too, Schisby v. Westenholz, 1870, L. R.
6 Q. B. 155; Rousillon v. Rousillon, 1880, 14 Ch. Div. at p. 370;
Novion v. Freeman, 1889, 15 App. Ca. 1; and Sirdar Gurdyal Singh
v. Faridkote, [1894], A. C. 670.
252 A DIGEST OF [Part I.
AMERICAN NOTE.
General.
Authorities. — 2 Wharton on Evidence, sec. 802; 13 Am. & Eng.
Encyclopaedia of Law, p. 977 et seq.; Hilton v. Guyot, 159 U. S. 113,
206, 207; Fisher, Brown & Go. v. Fielding, G7 Conn. 91.
Full faith and credit are to be given the judgments of sister
States. U. S. Const., art. 4, sec. 1.
They are to have the same faith and credit as they would have in
the State of their rendition. U. S. Rev. Stat., sec. 905; Huntington
v. Attrill, 146 U. S. 657; Dow v. Blake, 148 111. 76; Fairchild v.
Fairchild, 53 N. J. Eq. 678; Harrington v. Harrington, 154 Mass.
517.
The judgments of sister States may be attacked collaterally for
want of jurisdiction whatever may be the jurisdictional averments
of the record. Gregory v. Gregory, 78 Me. 1S7 ; Thompson v. Whit-
man, 18 Wall. 457; Graham v. Spencer, 14 Fed. Rep. 603: Price v.
Schoeffler, 161 Pa. 530; Napton v. Leaton, 71 Mo. 358; Pennywait
v. Foote, 27 O. St. 600 ; Greenzweig v. Sterlinger, 103 Cal. 278 ; Oil-
man v. Gilman, 126 Mass. 26, 27.
No greater effect is to be given to a judgment rendered in another
country, or another State of the United States, in a suit upon it
here, than it would have where rendered. Wood v. Watkinson, 17
Conn. 505, 508; Stanton v. Embry, 46 Conn. 65, 595.
The judgment of a State court, when proved in the manner pro-
vided by law, has the same effect in every other State as in the
State where it was pronounced; and no pleas, which would not be
good there, can be pleaded to an action on it in another State.
Warren Mfg. Co. v. Mtna Ins. Co., 2 Paine, 508; Bank of North
America v. Wheeler, 28 Conn. 439.
But a plea showing that the court where it was rendered had no
jurisdiction of the person is admissible. Warren Mfg. Co. v. .Etna
Ins. Co., 2 Paine (U. S.), 510, 515.
The recitals of foreign judgments are prima facie evidence only
of jurisdiction. Wright v. Andrews, 130 Mass. 149.
A foreign judgment may be attacked collaterally for lack of
jurisdiction. Rothrock v. Dwelling-House Ins. Co., 161 Mass. 423;
Ritchie v. McMullen, 159 U. S. 235; McEwan v. Zimmer, 38 Mich.
765; Roth v. Roth, 104 111. 35; Smith v. Grady, 68 Wis. 215.
Chap. IV.] THE LAW OF EVIDENCE. 253
A party cannot impeach a judgment of a sister State collaterally
for fraud. Mooney v. Hinds, 1G0 Mass. 467.
Judgments of sister States. — The judgments of sister States may
be attacked collaterally for want of jurisdiction whatever may be
the jurisdictional averments. Cross v. Cross, 108 N. Y. 628. As for
instance for fraud. Stanton v. Crosby, 9 Hun, 370. See Davis v.
Cornne, 151 N. Y. 172; Hunt v. Hunt, 72 N. Y. 217. And fraud in
procuring a judgment may be claimed as an equitable defense thereto.
Dobson v. Pearce, 12 N. Y. 156.
But judgments cannot be attacked on the merits for error or
irregularity. Pringle v. Woodworth, 90 X. Y. 502.
A judgment by default rendered in another State, where the proc-
ess was served by publication on a nonresident or foreign corpora-
tion and an attachment of property recovered, has no validity as a
judgment in personam, and can only avail to reach the property
attacked. Fitzsimons v. Marks, 66 Barb. 333; Ward v. Boyce, 152
N. Y. 191. See Durant v. Abendroth, 97 N. Y. 132.
Foreign judgments. — A foreign judgment, although regarded as
conclusive upon the merits, may be attacked collaterally for want of
jurisdiction. Shepard v. Wright, 113 N. Y. 582; Dunston v. Higgins,
138 N. Y. 70.
New Jersey.
Judgments in Federal Courts. — Wittemore v. Malcomson, 9 N. J.
L. J. 338.
Judgments of sister States. — Bank v. Wallis, 59 N. J. L. 46; Jar-
dine v. Reichert, 39 N. J. L. 165; Robert v. Hodges, 16 N. J. Eq.
299.
The judgment of another State cannot be attacked on the ground
that there would have been a good defense had the action been
brought in New Jersey. McCanless v. Smith, 51 X. J. Eq. 505.
They are to have the same faith and credit as they would have in
the State of their rendition. Fairchild v. Fairchild, 53 N. J. Eq.
678.
Want of jurisdiction over the person may be shown. Ward v.
Price, 25 N. J. L. 225.
Judgment in a sister State may be impeached collaterally for lack
of jurisdiction even though the record contains recitals showing
jurisdiction. Royal Arcanum v. Carley, 52 N. J. Eq. 642.
254 A DIGEST OF [J'ahtI.
One not a party to a suit in a sister State is not bound by the
judgment. Chew v. Brumagim, 21 N. J. Eq. 520.
An order of removal of a pauper entered by justices of another
State is conclusive. Elizabetlt, v. Westfield, 2 Hal. 439.
Judicial proceeding of another State presumed to be valid and
regular. Royal Arcanum v. Carley, 52 N. J. Eq. 642.
A judgment in a sister State not impeachable on the merits for
error or irregularity. National Batik v. Wallis, 59 N. J. L. 46.
See Nichols v. Nichols, 25 N. J. Eq. 60.
A judgment of a sister State will not be enforced if it shows
fraud and imposition on the face of it. Davis v. Headley, 22 N. J.
Eq. 115.
Comity of States. — If the jurisdiction assumed by a foreign
court is unreasonable, contrary to natural justice, and the principles
of international law, comity does not require the judgment to be
recognized as valid. Moulin v. Insurance Co., 24 N. J. L. 222.
Recitals of jurisdiction of the person. — A recital in a foreign
judgment that the defendant was summoned or appeared may be
contradicted. G. S. 1895, " Evidence," 17.
Maryland.
Judgments in a sister State. — Harryman v. Roberts, 52 Md. 64;
Duvall v. Pearson, 18 Md. 502; Zimmerman v. Helser, 32 Md. 274.
The judgment of a court of a sister State is as conclusive as it
would be in the State where rendered. McCormick v. Deaver, 22
Md. 187.
The judgment of a court of a sister State is not impeachable on
the merits for mere error or irregularity. Harryman v. Roberts,
52 Md. 64.
Jurisdiction may be inquired into. lYemwag v. Pawling, 5 G. & J.
500; Bank of United States v. Merchants' Batik, 7 Gill, 415.
A judgment of a sister State may be attacked for want of juris-
diction over the person. Sewing Mach. Co. v. Radcliffe, 66 Md. 511.
The certificate of the clerk of the court of'a sister State is suffi-
cient authentication of the record. Case v. McGee, 8 Md. 9.
Judgments of Federal courts. — Barney v. Patterson, 6 Har. & J.
182.
Judgments of courts of foreign countries. — Taylor v. Phelps. 1
Har. & J. 492; Owing s v. Nicholson, 4 Har. & J. 66; Insurance Co.
v. Bathurst, 5 G. & J. 159.
CuAr. IV.] THE LAW OF EVIDENCE. 255
Statute. — As to effect of foreign judgments, see P. G. L. 1888,
art. 35, see. 37.
Pennsylvania.
Judgments of Federal courts. — Buchanan v. Biggs, 2 Yeates, 232;
Re Williamson, 26 Pa. 9.
Judgments of sister States. — Guthrie v. Lowry, 84 Pa. 533; Cur-
ran v. Rowley, 2 Pa. Co. Ct. 539; Bowersox v. Gitt, 12 Pa. Co. Ct. 81.
The judgments of sister States may be attacked collaterally for
want of jurisdiction whatever may be the jurisdictional averments
of the record. Price v. Schaeffer, 161 Pa. 530. See Wefherill v.
Stillman, 65 Pa. 105.
A judgment of a sister State is not entitled to full faith and
credit if rendered without jurisdiction of the person. Railroad Co.
v. Mercer, 11 Phila. 226; Noble v. Oil Co., 79 Pa. 354; Steel v. Smith,
7 W. & S. 447.
Judgments of courts in foreign countries. — Rapalje v. Emory, 2
Dall. 51, 231; Messier v. Amery, 1 Yeates, 533; Pearson's Estate. 6
Pa. Co. Ct. 298; Cheriot v. Foussat, 3 Binn. 220; Snell v. Foussat,
3 Binn. 239.
256 A DIGEST OF [Part I.
CHAPTER V.*
OPINIONS, WHEN RELEVANT AND WHEN NOT.
Article 48.
opinion generally irrelevant.
The fact that any person is of opinion that a fact in issue,
or relevant or deemed to be relevant to the issue, does or
does not exist is deemed to be irrelevant to the existence of
such fact, except in the cases specified in this chapter.
Illustration.
The question is. whether A, a deceased testator, was sane or not
when he made his will. His friends' opinions as to his sanity, as ex-
pressed by the letters which they addressed to him in his lifetime, are
deemed to be irrelevant.!
AMERICAN NOTES.
General.
Authorities. — 1 Wharton on Evidence, sec. 509 et seq.; 1 Green-
leaf on Evidence (15th ed.). sec. 440, and notes, and vol. 2, sec. 371;
12 Am. & Eng. Encyclopaedia of Law (2d ed.), sec. 488 et seq.;
Lawson on Expert and Opinion Evidence, chaps. 1-7 ; Conn. Ins. Co.
v. Lathrop, 111 U. S. 612, 618; Graham v. Pa. Co., 139 Pa. 149;
Coates v. Burlington, etc., R. Co., 62 la. 486. See Cannon v. People,
141 111. 270.
Witnesses may give their opinions in connection with facts when
the matter cannot otherwise be reproduced or made palpable.
Fayette v. Chesterville, 77 Me. 28, 52 Am. Rep. 741 ; Lester v.
Pittsford, 7 Vt. 158; Morse v. Crawford, 17 Vt. 499; Cram v. Cram,
33 Vt. 15; Bates v. Sharon, 45 Vt. 474; Clifford v. Richardson, 18
* See Note XXIV.
1 Wright v. Doe d. Tatham, 1837, 7 A. & E. 313.
Chap. V.] THE LAW OF EVIDENCE. 257
Vt. 620; Cavendish v. Troy, 41 Vt. 99; Shelby v. Clagett, 46 O. St.
549; State v. Rainsberger, 71 la. 746; People v. Rolfe, 61 Cal. 540;
Chicago R. Co. v. Fan FZeefc, 143 111. 480; Coo/c v/ Ins. Co., 84 Mich.
12.
Where the circumstances are such that opinion evidence is the
best that can be had, eye-witnesses may state their opinions. Hardy
v. Merrill, 56 N. H. 227, 241, 22 Am. Rep. 441. See, also, dissent-
ing opinion of Doe, J., in State v. Pike, 49 N. H. 40S ; Vanderpool
V. Richardson, 52 Mich. 336; State v. Stackhouse, 24 Kan. 445;
Com. v. Sturtivant, 117 Mass. 122, 123, 19 Am. Rep. 401.
A nonexpert may state his opinion as to the following matters:
Identity of persons, things or handwriting; size, color or weight;
time or distance; character of sounds and whence they proceed.
Com. v. Sturtivant, 117 Mass. 122, 123, 19 Am. Rep. 401.
Kindly treatment. Baldwin v. Parker, 99 Mass. 79.
Character of a foundation. Bardwell v. Conway Ins. Co., 122
Mass. 90.
Rate of expenditure of a person. Griffin v. Brown, 2 Pick.
(Mass.) 304.
That one seemed sad. Culver v. Dwight, 6 Gray (Mass.), 444.
Or took no interest in what was going on. Com. v. Piper, 120
Mass. 185.
Whether a road is dangerous. Lund v. Tyngsborough, 9 Cush.
(Mass.) 36; Kelleher v. Keokuk, 60 la. 473.
Whether " horn chains " are fragile. Sioeet v. Shumicay, 102
Mass. 365.
As to a person's age. Com. v. O'Brien, 134 Mass. 198: Eisner v.
Supreme Lodge, 98 Mo. 640.
Whether hairs are those of a human being. Com. v. Dorsey, 103
Mass. 412: Com. v. Sturtivant, 117 Mass. 122.
Whether a foot and footprints correspond. Com. v. Pope, 103
Mass. 440.
As to whether one was careful and temperate. Gahagan v. B. &
L. R. R. Co., 1 Allen (Mass.). 187; Cook v. Ins. Co.. 84 Mich. 12.
Where the opinion of one is a relevant fact he may state that
opinion. Allen v. Hartford Life Ins. Co., 72 Conn. 697.
A witness cannot be asked whether a previous witness, who has
testified to certain things, " had any ground " for so testifying.
ijovell v. Hammond Co., 66 Conn. 501.
Opinions of persons not experts may be admitted when they are
1Y
258 A DIGEST OF [Part I.
those of practical and observing men, of the result of their own
observations and knowledge, upon a question the particular ele-
ments of which are so numerous and the character of which is
such that it is impracticable for them to state the facts fully.
Barber v. Manchester, 72 Conn. 684.
Sanity. — A nonexpert witness, having stated the extent of his per-
sonal acquaintance, may give an opinion as to sanity. State v. Cross,
72 Conn. 722.
The mere opinion of a nonexpert witness concerning the mental
condition of a testator is never admissible. It is admissible only
in connection with the particular facts on which it is based or
after the witness has been shown to have sufficient means and
opportunities of personal observation to enable him to form a
reasonably correct conclusion. They are received rather as state
ments of impressions or conclusions in the nature of facts of which
the witness has knowledge than as opinions. Turner's Appeal, 72
Conn. 315.
A nonexpert who has had sufficient opportunity of observation
may be asked, " Was the testator, in your opinion, a person of
sound mind " or whether he possessed sufficient understanding to
be able to transact the ordinary business matters incident to the
management of his household affairs and property, or to compare his
mental power with that of an average child of seven or eight
years. Turner's Appeal, 72 Conn. 316.
Upon the issue of sanity, witnesses to particular facts may give
their opinion in connection with such facts. Hardy v. Merrill, 56
N. H. 227, 22 Am. Rep. 441; Ct. Ins. Co. v. Lathrop, 111 U. S. 612;
Foster's Ex. v. Dickerson, 64 Vt. 233; Elcessor v. Elcessor, 146 Pa. St.
359; A 7 . Y., etc., R. Co. v. Luebeck, 157 111. 595; Neiccomb v. New-
comb, 96 Ky. 120; Holland v. Zollner, 102 Cal. 633; Fishburne v.
Ferguson, 84 Va. 87.
The mere opinion of a nonexpert witness concerning the mental
condition of a testator is never admissible. But he may state acts
and conversations of such testator falling within his personal knowl-
edge, and th m, upon these as a basis, stat<j his opinion as to their
rationality or irrationality, or whether or not these were the acts
and conversations of a rational person. Judgment and order (1895).
36 X. Y. Supp. 283, 91 Hun, 165, affirmed: Johnson v. Cochrane, 54
N. E. 1092. 159 X. Y. 555.
Value — Damages. — Upon the question of the depreciation in valu<»
resulting from the erection of telegraph poles in front of plaintiff's
Chap. V.] THE LAW OF EVIDENCE. 25!)
property, opinion evidence is irrelevant. Comesky v. Postal Tele-
graph Cable Co., 58 N. Y. Supp. 467, 41 App. Div. 245.
A witness cannot testify as to the value of chattels, in the absence
of evidence of the chattels themselves or their quality and quantity,
even if the witness has personal acquaintance with such facts. Judg-
ment (City Ct. N. Y., 1899), GO N. Y. Supp. 1000, reversed; Smith v.
Smith, 65 N. Y. Supp. 497, 32 Misc. Rep. 702.
Admissible opinion and evidence similar to opinion evidence. — ■
Under certain circumstances, nonexperts may give opinions. C. & A.
R. R. Co. v. Truitt, 68 111. App. 76; Carter v. Carter, 152 111. 434.
One can testify as to whether a person appears sick or well, and
may compare appearance at different times and state whether as-
sistance was necessary under certain circumstances. Salem v. Web-
ster, 192 111. 369, 61 N. E. 323, affirming 95 111. App. 120.
Any one may testify that one is sick. Shawneetown v. Town of
Mason, 82 111. 337.
A witness may be asked as to the appearance of the party with
reference to pain and suffering. Cicero & P. St. Ry. Co. v. Priest,
190 111. 592, 68 N. E. 814, 89 111. App. 304.
Any one is competent to testify as to the smell of liquors. Mar-
schall v. Laughran, 47 111. App. 29.
A nonexpert witness may testify as to the necessity for medical
assistance. C, B. & Q. R. R. Co. v. George, 19 111. 510.
Upon the question of whether a preacher has departed from the
faith of the church, opinions of a witness are admissible. Happy v.
Morton, 33 111. 399.
An ordinary witness may testify that a bridge constituted a ma-
terial obstruction to navigation. /. R. P. Co. v. Peoria Bridge Assn.,
38 111. 467.
Opinion evidence is admissible as to the sense in which slanderous
words were used. Nelson v. Borchenious, 52 111. 236.
In order to testify as to value, a witness must show his knowl-
edge. Cooper v. Randall, 59 111. 317; C. d N. W. Ry. Co. v. IngersoU,
(55 111. 399.
In a negligence suit, one may give his opinion as to the rate of
speed of a train and whether it was under Control. C, B. d Q. R. R.
Co. v. Johnson, 103 111. 512; Doicden v. Wilson, 12 Brad. 297. 299.
Nonexpert witnesses may testify as to the capacity of a testator.
Ring v. Lawless, 190 111. 520, 60 N. E. S81.
One may testify that he knew where another was going. N. Y., C.
d St. L. R. R. Co. v. Luebeck, 157 111. 595.
260 A DIGEST OF [Part 1.
A question as to whether a train can he seen from a given point
is admissible. C, C, C. d St. L. Ry. Co. v. Moss, 89 111. App. 1.
Witnesses who have driven a horse a number of times, or seen it
driven formerly, are competent to testify as to its disposition. Pio-
neer Fire Proof Instruction Co. v. Sunderland. 188 111. 341, 58 N. E.
928, affirming 87 111. App. 213.
In order that a witness be allowed to give an opinion, he must be
shown to be competent. Grand Lodge v. Randolph, 186 111. 59, 57
N. E. 882, affirming 84 111. App. 220.
A witness may be asked " Who was in possession and control of
the premises." Knight v. Knight, 178 111. 553, 53 N. E. 306.
In a breach of promise case, a question " Did he court her?" is ad-
missible. Greenup v. Stoker, 3 Gilm. 202.
On questions of solvency, a witness may be asked if he is the
owner of property. Corgan v. Frew, 39 111. 31.
The question of whether a sidewalk is properly constructed or not
is one admitting nonexpert testimony. Alexander v. Mt. Sterling, 71
HI. 366.
Custom. — Custom may be shown by nonexpert evidence. Wilson
v. Bauman, 80 111. 493.
Question of damages. — In replevin, testimony may sometime*
properly include both matters of fact and opinion upon the question
of damages. Butler x. Mehvling, 15 111. 488.
One who has examined premises may give his opinion as to the
damage done to them. 0. G. L. d C. Co. v. Graham, 35 111. 346.
In condemnation proceedings, witnesses may give their opinions
as to benefits and damages. Hayes v. O. O. d R. V. R. R. Co., 54
HI. 373.
A jury may consider evidence given without objection as to the
opinion of witnesses with reference to the extent of damage to a
right of way. R., R. I. & St. L. R. R. Co. v. Coppingcr, 66 111. 510.
Witnesses may testify as to the amount of damage to the owner of
land from the construction of a railroad. K. d E. R. R. Co. v. Henry,
79 111. 290: G. d I. W. R. R. Co. v. Haslam, 73 111. 494.
Witnesses who have testified as to personal knowledge of injuries
and detailed their character may give their opinions as to damages.
C. d St. L. R. R. Co. v. Woosley, 85 111. 370.
Opinion evidence is admissible in condemnation proceedings. Chi-
cago. P. d St. L. R. R. Co. v. Nix, 137 111. 138; C. d N. W. Ry. Co.
v. Cicero. 154 Til. 656.
Chap. V.] THE LAW OF EVIDENCE. 261
A witness with knowledge of the facts may testify as to benefits
resulting from a pavement. Peyton v. Morgan Park, 172 111. 102,
49 N. E. 1003.
Putting witness in place of jury. — A witness cannot be put in the
place of the jury. Wabash Ry. Co. v. Smillie, 97 111. App. 7; N. Gas-
light & F. Co. v. Miethke, 35 111. App. 629, 632.
Witnesses cannot give their opinions in such a way as to cover
the very matter to be submitted to a jujy. C. & A. R. R. Co. v. S. &
N. W. By. Co., 67 111. 142.
A question as to whether an unusual amount of goods has been pur-
chased by a firm is for the jury, and not a matter of opinion evi-
dence. Gilbert v. Kuppcnheimer, 67 111. App. 251.
Form of question where opinion is admissible. — Hypothetical ques-
tions involving assumptions of facts, as to which there is testimony,
may be allowed. Frambers v. Risk, 2 Brad. 499.
In stating an inference involving facts, it is not necessary to de-
tail the facts. Lake Sh. cC- M. S. R. R. Co. v. Lassan, 12 Brad. 659.
Question of qualification. — The competency of a nonexpert wit-
ness is for the court. Colee v. State, lb Ind. 511.
Opinion admissible as to identity and appearance, etc. — Non-
experts may give their opinions on questions of identity, resem-
blance, sickness, health, value, conduct, and bearing, whether friendly
or hostile, and the like, in connection with the facts. Smith v.
Indianapolis, etc., R. R. Co., 80 Ind. 233, 235; Loshbaugh v. Birdscll,
90 Ind. 460, 467 ; Terre Haute, etc., R. R. Co. v. Crawford, 100 Ind.
550, 556; Carthage, etc., Co. v. Andrews, 102 Ind. 138, 142 (health) ;
Louisville, etc., Ry. Co. v. Holsapple, 12 Ind. App. .'501 (health).
A nonexpert witness may testify as to a culvert; that a horse is
gentle; that a certain substance is "hard-pan;" that a highway
was in good or bad repair; that a certain liquid was whiskey; that
a train was running at a specified rate of speed; that the weather
was cold enough to freeze potatoes, and that a dam was sufficient.
Bennett v. Meehan, 83 Ind. 566, 509.
The soundness of animals may be shown by opinion evidence.
House v. Fort, 4 Blackf. 293.
A nonexpert witness may give an opinion as to the speed at which
a train was moving. Louisville, etc., Ry. Co. v. Jones, 108 Tnd. 551,
565; Evansville, etc., Ry. Co. v. Crist, 116 Ind. 446. 457: Louisville,
etc., Ry. Co. v. Hendricks, 128 Ind. 482, 463; Stonnes v. Lunon, 7
Ind. App. 435, 438.
262 A DIGEST OF [Part I.
Where, in an action for personal injury, a nonprofessional wit-
ness is testifying to the condition and appearance of the injured
party before and after the injury, an expression by the witness that
the party had grown worse is competent. Louisville, etc., Ry. Co. v.
Wood, 113 Ind. 544, 551.
As to opinion evidence as to shades of granite, see Githens v. Mc-
Donald, 24 Ind. App. 395.
Conclusions. — Witnesses cannot state their conclusions. Anderson
v. Thunder Bay, etc., Co., 61 Mich. 489; Lemon v. Chicago & Grand
Trunk Ry. Co., 59 Mich. 618; Taylor v. Adams, 58 Mich. 188.
A witness cannot give his conclusions based upon facts in evidence.
Dundas v. Lansing, 75 Mich. 499; Tice v. Bay City, 78 Mich. 209,
44 N. W. 52; Jones v. Portland, 88 Mich. 598, 50 N. W. 731.
Speculation. — A witness cannot give a mere speculation. Bissel
v. Star, 32 Mich. 297.
New Jersey.
Authorities. — Opinions of persons not experts upon matters upon
which ordinary persons are regarded as able to form reliable opin-
ions are admissible, when the facts cannot be recited to the jury
so as to enable them to form a trustworthy opinion themselves.
Koccis v. State, 56 N. J. L. 44, e. g., whether one was drunk or sober;
Castner v. Slilcer, 33 N. J. L. 507.
Opinion as to insolvency excluded. Brundred v. Machine Co., 4
N. J. Eq. 295.
An expert testifying as to cost of certain repairs may not also
testify as to the opinion of another now dead who was employed to
estimate such cost in conjunction with the witness. Collins v. Lan-
gan, 58 N. J. L. 6.
Sanity. — Opinion of attesting witness admissible as to testator's
sanity. Clifton t. Clifton, 47 X. J. Eq. 227.
Opinion of one not an expert as to sanity is admissible when given
in connection with the facts upon which the opinion is founded.
Gens v. State. 58 X. J. L. 482; Yanauken's Case. 10 N. J. Eq. 192.
Weight of opinion evidence. — Life Ins. Co. v. Brown. 30 N. J. Eq.
193; Brown v. Life Ins. Co.. 32 N. J. Eq. 809; In re Gordon's Will,
50 N. J. Eq. 397; Black v. Black, 30 N. J. Eq. 215; Childs v. Jones,
41 X. J. Eq. 74. 42 N. J. Eq. 458.
(hap. V.] THE LAW OF EVIDENCE. 263
Maryland.
General rule. — Tall v. Steam Packet Co., 90 Md. 248.
A witness may not state whether in his opinion a person's life
was in danger from one attacking. Tucker v. State, 89 Md. 471.
Sanity — Nonexperts. — Opinion of one not an expert as to sanity
is admissible when given in connection with the facts upon which the
opinion is based. Chase v. Winans, 59 Md. 475 ; Jones v. Collins,
1)4 Md. 403; Brashears v. Orme, 93 Md. 442; Berry Will Case, 93
Md. 560.
Nonexpert opinion as to the mental condition of a person can be
given only with the facts upon which such opinion is based. Kerby
v. Kerby, 57 Md. 345; Stewart v. Spedden, 5 Md. 433; Stewart v.
Redditt, 3 Md. 67.
Opinions of personal friends as to one's sanity or mental capacity
aro admissible if accompanied by the facts upon which they are
based. Williams v. Lee, 47 Md. 321; Waters v. Waters, 35 Md. 531;
Weems v. Weems, 19 Md. 334; Dorsey v. Warfield, 7 Md. 65.
As to the sufficiency of facts to which a witness must testify before
lie may give his opinion as to sanity, see Brashears v. Orme, 93 Md.
442 ; Berry Will Case, 93 Md. 560.
Subscribing witnesses to a will. — The subscribing witnesses to a
will may state their opinion as to the sanity of the testator without
giving the facts upon which the opinion is based. Williams v. Lee,
47 Md. 321.
The opinion of a subscribing witness to a will as to the testator's
sanity is admissible without showing that he made any special
investigation. Jones v. Collins, 94 Md. 403.
Value. — Nonexpert opinion as to the value of cigarettes allowed.
Archer v. State, 45 Md 33.
The opinion o"f one specially qualified to form an opinion is ad-
missible to show the value of property, services, etc. Wallace v.
Schaub, SI Md. 594.
Opinion of real estate dealer conversant with values in the locality
is admissible to prove value of a certain lot. Mayor of Baltimore
v. Smith. 80 Md. 45S.
Damages. — Opinion evidence is admissible on the question of the
amount of damage caused by the building of a railway. Lake Ro-
land Ry. Co. v. Weir, 86 Md. 273; Lake Roland Ry. Co. v. Frick,
8(\ Md. 259.
264 A DIGEST OF [Part I.
Opinion based on hearsay. — A witness may not testify as to the
value of certain articles of hardware, when his whole knowledge on
the subject is based on information derived from others, and it is
possible to produce witnesses who manufacture and sell such articles.
Green v. Caulk, 16 Md. 556.
Opinions as to the value of property must be based upon knowledge
and not upon mere hearsay. Railroad Co. v. Shipley, 39 Md. 251.
Pennsylvania.
Opinion evidence is generally rejected. — Barre v. Railway Co., 155
Pa. 170; Smith v. Cohn, 170 Pa. 132; Heath v. Slocum, 115 Pa. 54'J ;
Auberle V. HcKeesport, 179 Pa. 321; Cookson v. Railway Co., 179
Pa. 184; Graham v. Pennsylvania Co., 139 Pa. 149.
Opinion as to the cause of an ice jam not received. Shaw v. Sus-
quehanna Boom Co., 125 Pa. 324.
Witness' opinion as to whether a certain place on a road was
dangerous was excluded. Kitchen v. Union Twp., 171 Pa. 145;
Graham v. Pennsylvania Co., 139 Pa. 149; Siegler v. Mellinger, 203
Pa. 256.
Opinion evidence not admitted as to the safety of a sluice in a
public road. Platz v. McKean Twp., 178 Pa. 601.
It was not error to exclude the opinion of a witness that a motor-
man had used good judgment in allowing his car to proceed. Woeck-
ner v. Motor Co., 187 Pa. 206.
Opinion evidence is not proper as to what may have caused trouble
between a testator and his wife. Miller v. Miller, 187 Pa. 572.
Opinion as to one's ability to understand a contract is not ad-
missible. Aiman v. Stout, 42 Pa. 114.
The attesting witnesses to a deed cannot express their opinion as
to the grantor's acting under undue influence. Dean v. Fuller, 40
Pa. 474.
Legal conclusions. — A witness' opinion that two parties made a
contract is not admissible. Monument Co. v. Johnson, 144 Pa. 61.
The opinion of a secretary of a building association as to whether
a person is a member of the association is not admissible. Building
Society v. Holt, 184 Pa. 572.
A railroad inspector cannot give his opinion as to what were the
duties of his assistants when the instructions given them are before
the court. Dooner v. (.'anal Co., 164 Pa. 17.
Chap. V.] TUB LAW OP EVIDENCE. 205
A witness must testify as to what was said and done, not as to his
opinion of the legal effect of the words and acts. Irwin v. Nolde,
164 Pa. 205.
Nonexperts. — The opinion of a nonexpert witness cannot be brought
out by asking him hypothetical questions. Beardslee v. Columbia
Twp., 188 Pa. 496; Graham v. Pennsylvania Co., 139 Pa. 149;
Dooner v. Canal Co., 164 Pa. 17; Cookson v. Railway Co., 179 Pa.
184; Auberle v. McEeesport, 179 Pa. 321.
Opinions of nonexperts generally not admissible. Rouch v. Zehring,
59 Pa. 74.
Nonexpert opinion as to the effect of an injury on health excluded.
Water Co. v. Stewartson, 96 Pa. 436; Passenger Ry. Co. v. Christian,
124 Pa. 114.
Where description is inadequate. — The opinion of a witness is
proper when mere descriptive language is not adequate to convey the
facts to the jury. Whitaker v. Campbell, 187 Pa. 113.
Opinion evidence is not admissible where the circumstances can be
fully and accurately described to the jury, and their bearing on the
issue estimated without special knowledge or training. Reese v.
Clark, 198 Pa. 312; Graham v. Railroad Co., 139 Pa. 149.
A witness who has examined the place of an accident may give his
opinion as to its dangerous character. Bcatty v. Gilmorc, 10 Pa.
463; Hughes v. Stevens, 36 Pa. 320; McNerney v. Reading, 150 Pa.
611. See Kitchen v. Union Twp., 171 Pa. 145; Graham v. Pennsyl-
vania Co., 139 Pa. 149; Siegler v. Mellinger, 203 Pa. 256.
Opinion of witnesses of experience admitted to show that one in-
jured acted in the only manner possible. Kehler v. Schiccnk, 151
Pa. 505.
Special knowledge and experience. — Opinions of persons having
special knowledge and experience are admissible to show value of
property, services, etc. McElheny v. Bridge Co., 153 Pa. 10S.
It is proper to ask a doctor whether an ax would have caused such
a wound as was found on deceased's head. Com. v. Bubnis. 197 Pa.
542.
One must be shown to be competent before he may express his
opinion. Wallace v. Gas Co.. 147 Pa. 205; Lineoski v. Goal Co.. 157
Pa. 153.
Mental capacity. — Opinions of nonexperts are admissible on ques-
tions of mental capacity after giving the facts upon which such
opinions are based. Rambler v. Tryon, 7 S. & R. 90; Wilkinson v.
266 A DIGEST OF [Part I.
Pearson, 23 Pa. 117; Pidcoek v. Potter, 68 Pa. 342; Titlow v. Titlow,
54 Pa. 216; Roche v. Wer/j/e, 202 Pa. 169; Hepler v. Hosack, 197 Pa.
631 : Elcessor v. Elcessor, 146 Pa. 359. But not without stating such
facts. Dickinson V. Dickinson, 61 Pa. 401.
Subscribing witnesses to will may give their opinion as to the
testator's sanity without stating the facts upon which such opinion
is based. Logan v. McGinnis, 12 Pa. 27; Titlow v. Titlow, 54 Pa.
210; Pidcoek v. Potter, 68 Pa. 342; Wright's Estate, 202 Pa. 395:
/7</&er£ v. Egbert, 78 Pa. 326.
Laymen allowed to testify that they saw no indication of insanity
in an accused, after stating their opportunities of knowledge. Com.
v. Gearhardt, 205 Pa. 387.
Value of land — Authorities. — Water Co. v. Iron Co., 84 Pa. 279;
Raihcay Co. v. Robinson, 38 Leg. Int. 22; 8. C, 95 Pa. 426; Railway
Co. v. Reed, 6 Atl. 838; Railway Co. v. Vance, 115 Pa. 325; Railway
Co. v. Play ford, 14 Atl. 355; Myers v. Railway Co., 5 Pa. Co. Ct.
634; Curtin v. Railway Co., 135 Pa. 20; Gallagher v. Kemmerer, 144
Pa. 509; Michael v. Pipe-Line Co., 159 Pa. 99; Pennock v. Pipe Line
Co., 170 Pa. 372.
An opinion as to the value of land given by one never in the neigh-
borhood is not admissible. Mewes v. Pipe-Line Co., 170 Pa. 364,369.
One's opinion as to the value of land is admissible if he is ac-
quainted with land values in the neighborhood. He need not be an
expert. McElheny v. Bridge Co., 153 Pa. 108; Pennsylvania, etc.,
Canal Co. v. Bunnell, 81 Pa. 414; Lee v. Springfield Co., 176 Pa. 223.
Opinion evidence as to value of land taken for a reservoir ad-
mitted. Gearhart v. Water Co., 202 Pa. 292.
The best evidence of the market price of land is the opinion of
witnesses in view of the location, productiveness, and prevailing
prices in the vicinity. Railroad Co. v. Rose, 74 Pa. 362; Railroad
Co. v. Hiester, 40 Pa. 53.
Value of chattels. — Betz v. Hummel, 13 Atl. 938.
Competency on the question of damages. — Gorgas v. Railway Co.,
144 Pa. 1; Dawson v. Pittsburgh, 159 Pa. 317: Lee v. Water Co.,
176 Pa. 223; Lewis v. Water Co., 176 Pa. 230.
Real estate agent with experience admitted as an expert to testify
as to the damage caused to a lot by the opening of a street. Darling-
ton v. Allegheny City, 189 Pa. 202.
In proceedings to assess damages, opinion evidence as to value is
admissible. Watson v. Railroad Co., 37 Pa. 469.
Chap. V.] THE LAW OF EVIDENCE. 267
Weight of opinion evidence. — Hoffman v. Bloomsburg R. Co., 143
Pa. 503; Rothchild v. Central R. of N. J., 163 Pa. 49; Pannell v.
Com., 86 Pa. 260.
It may be proper for the court to charge that opinion as to one's
testamentary capacity is not of as much weight as evidence concern-
ing his business transactions. Messner v. Elliott, 184 Pa. 41.
Article 49.
opinions of experts on points of science or art.
When there is a question as to any point of science or
art, the opinions upon that point of persons specially skilled
in any such matter are deemed to be relevant facts.
Such persons are hereinafter called experts.
The words " science or art, " include all subjects on which
a course of special study or experience is necessary to the
formation of an opinion, 2 and amongst others the examina-
tion of handwriting.
When there is a question as to a foreign law the opinions
of experts who in their profession are acquainted with such
law are the only admissible evidence (hereof, though such
experts may produce to the Court books which they declare
to be works of authority upon the foreign law in question,
which books the Court, having received all necessary expla-
nations from the expert, may construe for itself. 3
It is the duty of the judge to decide, subject to the
opinion of the Court above, whether the skill of any person
2 1 Smith's Leading Cases, 474 et seq.: (note to Cater v. Boehtn,
1663), 28 Vict. c. 18, s. 8.
3 Baron de Bode's Case, 1845, 8 Q. B. 267; Di Sora v. Phillipps,
1863. 10 H. L. Ca. 624; Castrique v. Imrie. 1870. L. R. 4 H. L.
at p. 434: see. too. Picton's Case, 1806. 30 S. T. 510 et seq.
268 A DIGEST OF [Part I.
in the matter on which evidence of his opinion is offered is
sufficient to entitle him to be considered as an expert. 4
The opinion of an expert as to the existence of the facts
on which his opinion is to be given is irrelevant, unless he
perceived them himself. 5
Illustrations.
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison
by which A is supposed to have died, are deemed to be relevant.
(6) The question is, whether A at the time of doing a certain act,
was by reason of unsoundness of mind, incapable of knowing the
nature of the act, or that he was doing what was either wrong or con-
trary to law.
The opinions of experts upon the question whether the symptoms
exhibited by A commonly show unsoundness of mind, and whether
such unsoundness of mind usually renders persons incapable of know-
ing the nature of tl ° acts which they do, or of knowing that what they
do is either wrong or contrary to law, are deemed to be relevant J
(c) The question is, whether a certain document was written by A.
Another document is produced which is proved or admitted to have
been written by A.
The opinions of experts on the question whether the two documents
were written by the same person or by different persons, are deemed to
be relevant.8
(d) The opinions of experts on the questions, whether in illustration
(a) A's death was in fact attended by certain symptoms; whether in
illustration (o) the symptoms from which they infer that A was of
unsound mind existed; whether in illustration (c) either or both of the
documents were written by A, are deemed to be irrelevant.
*Bristow v. Sequeville, 1850, 6 Ex. 275; Rowley v. L. d N. W. Rail-
way, 1873, L. R. 8 Ex. 221. In the Goods of Bonelli, 1875, L. R. 1 P. D.
69; and see In the Goods of Dost Aly Khan, 1880. L. R. 6 P. D. 6.
5 1 Ph. 520; Taylor, 1421.
$ R. v. Palmer, 1856 (passim). See my 'History of Crim. Law,'
iii. 389.
7 R. v. Dove, 1856 (passim). ' History Crim. Law,' iii. 426.
8 28 Vict. c. 18, s. 8.
Chap. V.] THE LAW OF EVIDENCE. 269
AMERICAN NOTES.
General.
Authorities. — Lawson on Expert and Opinion Evidence ( 2d ed. ) ,
chaps. 1-7; 12 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 414
et seq.
First paragraph of text. Page v. Parker, 40 N. H. 47, 58;
Hammond v. Woodman, 41 Me. 177, 66 Am. Dee. 219, n.; Spring Co.
v. Edgar, 99 U. S. 645, 657; Coyle v. Com., 104 Pa. St. 117; Mul-
downey v. III. Cent. R. Co., 36 la. 462. See Louisville, etc., R. Co. v.
Lucas, 119 Ind. 583.
Subjects of expert testimony. — The test as to the admissibility of
expert testimony is not whether the subject-matter is uncommon, or
whether many have knowledge of it, but whether the witnesses have
any peculiar knowledge or experience not common to the world.
Taylor v. Monroe, 43 Conn. 44.
Within the meaning of the rule, every business or employment
which has a particular class devoted to its pursuit is a science or
art. Lawson on Expert and Opinion Evidence (2d ed. ), p. 3.
Among the persons whose testimony may be admitted as that of
experts are the following: Assayers. State v. Knight, 43 Me. 19.
Photographers. Marston v. Dinglcy, 88 Me. 546. Surveyors. Bar-
ron v. Cobleigh, 11 N. H. 557, 35 Am. Dec. 505; Wallace v. Ooodale,
18 N. H. 439.
The following are proper subjects of expert evidence: How much
sand is used with a cask of lime. Miller v. Shay, 142 Mass. 598.
Whether the end of a drain in a cellar should be open. Stead v.
Worcester, 150 Mass. 241.
As to the normal condition of the private parts of a girl. Com.
v. Lynes, 142 Mass. 577.
But not whether a certain piece of land is large enough for a
house and stable. Pierce v. Boston, 164 Mass. 92.
He may testify as to the cause of death. Com. v. Thompson, 159
Mass. 56.
The law of the forum cannot be proved by the testimony of
lawyers. Gaylor's Appeal, 43 Conn. 82.
Foreign law. — Barroics v. Downs, 9 R. I. 447, 11 Am. Rep. 283;
Charlotte v. Chouteau. 33 Mo. 194. 200.
270 A DIGEST OF [PaetI.
The common law of another State may be proven by expert evi-
dence. Jenne v. Harrisville, 63 N. H. 405; Ennis v. Smith, 14 How.
(U. S.) 400; Mowry v. Chase, 100 Mass. 79; In re Roberts' Will, 8
Paine (U. S.), 446.
Practicing lawyers of another State may testify as to the law of
that State. Dyer v. Smith, 12 Conn. 386. But in some States one
need not be a practitioner. Sechinger v. Mfg. Co., 129 Mo. 590;
Mowry v. Chase, 100 Mass. 79.
A magistrate, who is not a lawyer, may be a competent witness
as to the law of his jurisdiction. Richard v. Bailey, 26 N. H. 169.
To the same effect is Hall v. Costello, 48 N. H. 179.
In the absence of proof of a foreign law, the common law of the
forum is applied. Carpenter v. Grand Trunk R. R. Co., 72 Me. 388;
O'Reilly v. N. Y., etc., R. R. Co., 16 R. I. 389; Musser v. Stauffer,
178 Pa. St. 99; Slaughter v. Bernards, 88 Wis. 111.
In the absence of proof, the foreign law is presumed to be the
same as that of the forum. Kelley v. Kelley, 161 Mass. Ill;
Dickson v. United States, 125 Mass. 311; Mclntyre v. B. & M. R. R.
Co., 163 Mass. 189.
A printed book, purporting to be a copy of the statutes of another
State, is not evidence of such statutes. Bosticich v. Bogardus. 1
Root (Conn.), 250.
To prove a foreign written law, expert evidence is admissible
either with or without a copy of such law. Barrows v. Downs, 9 R.
I. 446.
As to proving laws and treaties of the United States, see U. S.
Rev. Stat., sec. 908.
As to authentication of the laws of other States and territories
of the United States and countries subject to its jurisdiction, see
U. S. Rev. Stat., sec. 905.
In some States, by statute, the law reports of another State may be
read in evidence. Maine Rev. Stat., chap. 82, sees. 108, 109; 2 How.
Stat. (Mich.) 7508, 7509.
Examination of handwriting. — Withee v. Rowe, 45 Me. 571, 589;
Moody v. Rowell, 17 Pick. (Mass.) 490, 28 Am. Dec. 317.
Question of qualification for the judge.— Sustaining text. Perkins
v. Stichney, 132 Mass. 217; Haicks v. Charlemont, 110 Mass. 110;
Com. v. Williams, 105 Mass. 68; Struthers v. Phila., etc., R. Co., 174
Pa. St. 291; Stillicell, etc., Co. v. Phelps, 130 U. S. 520. See Ste-
vens v. Minneapolis, 42 Minn. 136; State v. Main, 69 Conn. 141.
Chap. V.] THE LAW OF EVIDENCE. 271
Testimony as to facts. — Spear v. Richardson, 37 N. H. 23, 34 ;
Dexter v. Hall, 15 Wall. 9, 26; Quinn v. Higgins, 63 Wis. 664, 53
Am. Rep. 305 and note ; Walker v. Rogers Exr., 24 Md. 232, 242.
Form of question. — Jewett v. Brooks, 134 Mass. 505; Meeker v.
Keeker, 74 la. 352; Hicks v. Citizens' R. Co., 124 Mo. 115.
It is the proper way, in examining an expert, to state all the
particulars upon which his opinion is sought. But the direction of
the matter lies within the discretion of the presiding judge. Rora-
back v. Pennsylvania Co., 58 Conn. 294.
Where an expert is asked his opinion upon certain facts proved,
the weight of authority is that the facts should be stated in the
question. Barber's Appeal, 63 Conn. 408.
Qualification. — The acceptance of a public office and the perform-
ance of its duties are circumstances which a court may consider in
determining whether to permit the incumbent to testify as an ex-
pert in matters relating to his duty, even if he should not be re-
garded as presumably qualified by virtue of his office. State v. Main,
69 Conn. 124.
Question of qualification. — The court in determining the compe-
tency of an expert need not confine itself # to his statements, but may
consider the evidence of other witnesses in regard to such competency.
Wright v. Schnaier, 70 N. Y. Supp. 128.
A person in reality a medical expert can give his opinion, although
he has no license to practice; however, the court will receive his tes-
timony only when made satisfied of his competency as an expert.
People v. Rice, 54 N. E. 48, 159 N. Y. 400.
Subjects not properly for expert evidence. — Experts cannot testify
as to matters of common knowledge. C. & A. Ry. Co. v. Lewondow-
ski, 190 111. 301, 60 N. E. 497; Brewster v. Weir, 93 111. App. 53S;
North Kankakee St. R. R. Co. v. Blatchford, 81 111. App. 609; Hughes
v. Richter, 161 111. 409.
The condition of a bridge at the time of an accident is not a sub-
ject of expert evidence. T., P. & W. R. R. Co. v. Conroy, 68 111. 560.
Whether one is drunk or not does not present a question for expert
testimony. Aurora v. Hillman, 90 111. 61; Dimmick v. Doiones, 82
111. 570.
The location of the line of danger from passing trains is not a
proper subject of expert testimony. C. & N. Ry. Co. v. Moranda, 1«U3
111. 576.
272 A DIGEST OF [Part I.
Defining terms. — Experts may define terms of art. Reed v. Hobbs,
2 Scam. 297; Jupitz v. People, 34 111. 516.
Putting expert in place of jury. — The experts, in their opinions,
cannot pass upon the question to be submitted to the jury. Hoener
v. Koch, 84 111. 408; Myers v. Lockicood, 85 111. App. 251; C, R. I.
d P. R. R. Co. v. Mofjltt, 75 111. 524; Pyle v. Pyle, 158 111. 289.
Qualifying expert. — Before giving his opinion, an expert must
qualify as an expert. McCormick H. M. Co. v. Burandt, 37 111. App.
167.
In order to be an expert witness, one must have had experience.
Citizens' Gaslight d Heat. Co. v. O'Brien, 15 111. App. 400.
An expert must be qualified by experience as well as knowledge
of theory. Citizens' Gaslight d Heat. Co. v. O'Brien, 15 Brad. 400.
A witness, in order to give an opinion, must have an acquaintance
with the subject-matter. M. IF. S. El. R. R. Co. v. Dickinson, 161
111. 22.
Lawyers as experts. — Lawyers may testify as experts. L., N. A.
d C. Ry. Co. v. Wallace, 136 111. 92.
Experts cannot construe a contract. Lord v. Owen, 35 111. App.
383.
Title cannot be proved by the opinion of lawyers. Leahy v. Hair,
33 111. App. 461, 464; Mead v. Alt geld, 33 111. App. 373, 381.
Physicians as experts. — Medical men may testify as experts.
S., X. A. & C. R. R. Co. v. Shires, 108 111. 617.
Physicians may testify as to the union of broken bones and as to
the advisability of an operation. Morton v. Zwierzykowski, 192 111.
328, 61 N. E. 413, affirming 91 111. App. 462.
An attending physician may testify as to the probable effect of an
injury. T., W. & W. Ry. Co. v. Baddeley, 54 111. 20.
The fact of paralysis may be proved by an expert. C. W. D. Ry.
Co. v. Lambert, 119 111. 257.
A surgeon may testify whether external violence might produce
a certain result. L. E. d W. R. R. Co. v. Wills, 39 111. App. 655;
Wabash West. Ry. Co. v. Friedman, 41 111. App. 275.
A medical witness may testify that a given accident would be apt
to result in a given injury. Illinois Cent. R. R. Co. v. Treat, 75 111.
App. 327. Compare Chicago St. Ry. Co. v. Smith, 69 111. App. 69.
The chance of survival of a seven months' child may be shown by
expert evidence. People v. Johnson, 70 111. App. 634.
Chap. V.] THE LAW OF EVIDENCE. 273
An expert may testify as to whether or not a child of thirteen
months was probably a seven months' child. People v. Johnson, 70
111. App. 634.
A physician may give his opinion as to the effect of injuries. S. C.
Ry. Co. v. Welsch, 155 111. 511.
An expert cannot testify as to the effect of morphine on a person
whose brain is affected. JEtna Ins. Co. v. Shoemaker, 59 111. App. 643.
The jury may determine damages in personal injury cases without
opinion evidence. Norton v. Yolzke, 158 111. 402.
Expert testimony as to the period of gestation, in a bastardy case,
is admissible in evidence. People v. Johnson, 70 111. App. 634.
Form of question. — Hypothetical questions are admissible. C. de
A. Ry. Co. v. Harrington, 192 111. 9, 61 N. E. 622, affirming 90 111.
App. 638; G. L. Co. v. Wiggin, 52 111. App. 69; T. Mfg. Co. v. Hoyle,
39 111. App. 539; M'Fall v. Smith, 32 111. App. 463, 472.
If the evidence introduced tends to establish the facts assumed in
a hypothetical question, it is proper to allow the question. People
v. Johnson, 70 111. App. 634.
Hypothetical questions are proper on cross-examination to test the
skill and accuracy of an expert. West Chicago St. Ry. Co. v. Fish-
man, 169 111. 196, 48 N. E. 447.
All material undisputed facts bearing on the matter should be in-
cluded in a hypothetical question. Catlin v. Traders' Ins. Co., 83 111.
App. 40; Levison v. Sands, 81 111. App. 578; Decatur v. Fisher, 63
111. 241.
Hypothetical questions based upon facts as each other's evidence
are admissible in examining an expert. Frambers v. Risk, 2 Brad.
499.
Railway experts — Engineers. — An expert may testify as to the
efficiency of a spark-arresting device. Evansville R. R. Co. v. Keith,
8 Ind. App. 57.
The engineer cannot testify that the blowing of a whistle was un-
necessary. Chicago, etc., R. Co. v. Cummings, 24 Ind. App. 192.
A railroad man can testify as to the danger of running a train
backwards. Chicago, etc., R. Co. v. Grim, 25 Ind. App. 494.
The relative manner of coupling cars equipped with single and
double deadwoods. and the increased danger attending the coupling of
cars constructed with the latter, are proper subject for expert testi-
mony. Louisville, etc., Ry. Co. v. Frawley, 110 Ind. 18, 27.
18
274 A DIGEST OF [Part I.
A man who has handled hand cars, or assisted in their manage-
ment, may express an opinion as to the rate of speed at which a
hand car was moving. Evansville, etc., R. R. Co. v. Crist, 116 Ind.
446, 457.
A competent expert may give an opinion as to the distance at
which it is safe to stop before going upon a crossing. N. Y., etc., Ry.
Co. v. Grand Rapids, etc., R. R. Co., 116 Ind. 60, 63.
Whether a railroad was finished at a certain date is a question of
fact, involving science and skill, and not a mixed question of law and
fact, and the opinion of experts is admissible concerning it. Hilton
v. Mason, 92 Ind. 157, 168.
Expert contractors in railroad building, may testify that, but for
delays caused by the railroad company and its engineers, the work
contracted for could have been completed in the time fixed in the
contract. Louisville, etc., Ry. Co. v. Donnegan, 111 Ind. 179, 191.
Mechanical experts. — Bridge builders may state whether, if a
bridge had been kept in repair, it would have borne safely a certain
load. Bonebrake v. Board, etc., 141 Ind. 62.
One experienced in handling derricks may testify as to whether a
particular rope used with a derrick was of sufficient strength. Con.
Stone Co. v. Williams, 26 Ind. App. 131.
Expert evidence as to how far a cage in a mine would drop before
the safety catch would stop it is admissible. Diamond, etc., Co. v.
Edmonson, 14 Ind. App. 594.
An expert may testify as to whether a complicated machine can
do the work for which it was intended. Buckeye Mfg. Co. v. Woolley,
etc., Works, 26 Ind. App. 7.
Experts may testify as to similar appliances. Indiana Bituminous
Coal Co. v. Buffey, 62 N. E. 279.
Where the defendant produced an expert witness who testified as-
to the result of an examination of the heel of a boot worn by the
deceased at the time of the accident, it was proper for the court tn
permit the plaintiff to introduce a shoemaker as a witness in re-
buttal on this question. Lake Erie, etc., R. R. Co. v. Mugg, 132 Ind.
168, 175.
A machinist who repaired an engine two years after its purchase
may testify to defects in its structure and general character, where
the issue is to its fulfillment of the warranty given upon its sale.
National Bank, etc., Co. v. Dunn, 106 Ind. 110, 114.
Chap. V.] THE LAW OF EVIDENCE. 27J
Value of property and services. — It is competent to prove values
by witnesses who have a knowledge of the matter in controversy, and
a proper acquaintance with the general value of services, articles, or
things of like character. Boiven v. Bowen, 74 Ind. 470 ; Smith v.
Indianapolis, etc., By. Co. 80 Ind. 233, 235 ; /Etna Life Ins. Co. v.
Nexsen, 84 Ind. 347, 351; Yost v. Convoy, 92 Ind. 464; Terre Haute,
etc., B. B. Co. v. Crawford, 100 Ind. 550, 556; City of Lafayette v.
Nagle, 113 Ind. 425, 428; Evansville, etc., B. B. Co. v. Feltig, 130
Ind. 61, 63; Grave v. Pemberton, 3 Ind. App. 71, 73; Soy v. Petty,
3 Ind. App. 241, 244.
Experts may testify as to the value of property or services.
Board v. Chambers, 75 Ind. 409; Penn. Co. v. Hunsley, 23 Ind. App.
37 (land) ; Ruber v. Beck, 6 Ind. App. 484 (growing crop).
The best and only legitimate evidence of the value of land at
the time of its sale is the opinion of witnesses who have personal
knowledge of the land, and, from their own observation, have become
acquainted with its value. Crouse v. Holman, 19 Ind. 30.
One who has examined property and inquired of qualified persons
as to its value may testify to its value, although not a resident of the
city where it is situated. Jones v. Snyder, 117 Ind. 229, 232.
A witness is not competent to testify as to how much a person's
life-estate would be worth at sheriff's sale, considering his age and
physical condition, when he is not shown to have the slightest knowl-
edge of the matter upon which he necessarily gave an opinion in
answering the question, viz. : upon the effect of the person's physical
condition upon his expectancy of life. Wilson v. Bennett, 132 Ind.
210, 211.
Every person who has arrived at the age of maturity must have
had more or less experience in caring for the sick or seeing it done,
and when one has seen such services as they are being rendered, he is
competent to give facts and then his opinion as to the value of such
services, the weight of such evidence to be determined by the jury.
Stomis v. Lemon, 7 Ind. App. 435, 437.
In an action by a physician for services rendered in conducting
post-mortem examinations for the coroner, it is immaterial, in deter-
mining the value of such services, what is or has been the average
daily income of such physician from his profession. Board, etc. v.
Chambers, 75 Ind. 409, 410.
276 A DIGEST OF [I'jlrtI.
Where in such action expert witnesses testified as to the value of
such services, there was no error in refusing to strike out such evi-
dence. Soy v. Petty, 3 Ind. App. 241, 244.
Evidence as to the price other physicians could have heen pro-
cured to perform such services was incompetent. Soy v. Petty,
3 Ind. App. 241, 244.
Works of science, scientific facts. — The rule that scientific publica-
tions are not admissible in evidence does not, of course, prevent their
use as a means of ascertaining the learning and the competency of an
expert. They may be referred to on cross-examination, and an expert
may be asked if he has read them; if he agrees with the conclusions
of their authors, the questions based upon their contents may be
asked. Hess v. Loicrey, 122 Ind. 233.
An expert may not only give his opinion, but may state facts
which are the result of scientific knowledge or professional skill.
Jones v. Angell, 95 Ind. 37G, 378.
The phase of the moon and the condition of the atmosphere on a
given night may be shown to the jury, but experts cannot testify as
to the quantity and quality of the light. Green v. State, 154 Ind.
655.
Testamentary capacity. — On questions of testamentary capacity,
evidence as to the capacity of the testator to do business is incom-
petent. Brackncy v. Fogle, 156 Ind. 535.
Surveyors and engineers. — A civil engineer may testify as to
whether a hole was dangerous and needed protection. Cross v. Lake
Sh. & M. S. R. R. Co., 69 Mich. 363.
A surveyor may state his opinion that the corners of land in dis-
pute were in accordance with the original government survey. Hock-
moth v. DesGrands Champs, 71 Mich. 520.
A surveyor's testimony as to a fence is admissible only in connec-
tion with his data. Jones v. Lee, 77 Mich. 35.
Boundary lines cannot be proven by the opinions of surveyors.
Burt v. Busch, 82 Mich. 506.
New Jersey.
Subjects of expert testimony. — Opinions of experts are not admis-
sible as to matters of common knowledge and experience. New Jersey
Traction Co. v. Brabban, 57 N. J. L. 691.
Expert opinion not admissible on matters of which nonexperts are
oomprlcnf to judge. Cook v. State, 4 Zab. 844.
Chap. V.] THE LAW OF EVIDENCE. 277
Expert opinion not admissible on a matter which it is the jury s
function to determine. Traction Co. v. Bliss, G2 N. J. L. 410.
Expert opinion not admissible to prove that a foreigner was able
to use and understand certain English words. Koccis v. Stale, 50
N. J. L. 44.
Qualification as an expert. — The qualification of an expert re-
quires either study or practice, not mere observation. Wheeler <&
Wilson Co. v. Buckhout, (iO N. J. L. 102.
Witness' opinion competent only when he has special knowledge
on the subject. Laing v. United N. J. R. & C. Co., 54 N. J. L. 570.
Opinion of a miller as to quantity of grain a mill could grind.
Read v. Barker, 30 N. J. L. 378, 32 N. J. L. 477.
Experienced fireman an expert as to the increased risk from lire
because of alterations in a building. Schenck v. Insurance Co., 4
Zab. 448.
A farmer is an expert as to damage caused by a railroad to land
due to the changed agricultural conditions but not as to the damage
caused by the exposure to fire. I'ennsylvania R. Co. v. Root, 53
N. J. L. 253.
The decision of the trial court as to whether a witness is qualified
as an expert is conclusive unless very clearly wrong. Neiv Jersey
Zinc Co. v. Lehigh Zinc Co., 59 N. J. L. 189.
Laws of another State. — The existence and meaning of written
and unwritten laws of another State may be proved by opinions of
expert witnesses. Trust Co. v. Potteries Co., 56 N. J. Eq. 441.
Opinions of medical experts. — State v. Powell, 2 Hal. 244; Cast-
ner v. Sliker, 33 N. J. L. 95, 507.
Expert opinion as to probable duration of disability is admissible,
even though based in part upon statements made by the disabled
person. Consolidated Traction Co. v. Lambertson, 59 N. J. L. 297.
Value. — Real estate agents as experts on the subject of rents.
Haulenbeck v. Conkright, 23 N. J. Eq. 407.
As to opinion of real estate dealers as to value of a certain lot. sc<-
Laing v. United N. J. R. Co., 54 N. J. L. 576.
Expert testimony as to the value of shade trees to a lot. Elvins
v. Telegraph Co., 63 N. J. L. 243.
Expert opinion not admitted to show difference in value of prop-
erty caused by the construction of a railroad. Thompson v. Pennsyl-
vania R. Co., 51 N. J. L. 42.
Handwriting. — Expert testimony admissible as to handwriting.
West v. State, 2 Zab. 212.
278 A DIGEST OF [Part I.
Qualification of a handwriting expert. Wheeler & ~\Yilson Co. v.
Buckhout, GO N. J. L. 102.
The opinion of a handwriting expert is of little weight unless ac-
companied by an ocular demonstration. Gordon's Case, 50 N. J. Eq.
397, 52 N. J. Eq. 317.
Evidence of handwriting experts is of low degree. Life Ins. Co. v.
Broicn, 30 N. J. Eq. 193, 32 N. J. Eq. 809.
Hypothetical questions. — Opinion of an expert as to the cause of
an accident must be elicited by hypothetical questions unless he per-
sonally knows all the facts. Traction Co. v. Bliss, 62 X. J. L. 410.
Form of hypothetical questions put to an expert. Lindenthal V.
Hatch, 61 N. J. L. 29.
The fact that an expert has an interest affects the weight of his
testimony, not its competency. New Jersey Zinc Co. v. Lehigh Zinc
'Co., 59 N. J. L. 189.
Maryland.
Subjects of expert testimony. — Expert testimony is admissible as
to matters requiring special experience or study. Davis v. State, 38
Ml. 15.
Expert evidence is not admissible as to matters which can be de-
termined without special skill or study and the jury can themselves
decide upon the facts. Stumore v. Shaw, 68 Md. 11; Hardy v.
Chesapeake Bank, 51 Md. 562.
Expert opinion is not admissible upon questions concerning which
the jury are competent to form an opinion. Berry v. Safe Deposit
Co., 96 Md. 45; Bank v. Manion, 87 Md. 68.
Qualification as an expert. — An experienced grazier is qualified as
an expert concerning matters likely to affect the health of cattle.
B. <(■ O. R. Co. v. Thompson, in Md. 76.
The trial court's ruling as to the competency of one to testify as
an expert is reviewable on appeal. Dashiell v. (h'iffith, S4 Md. 363.
One not an expert is competent to describe a person's physical
appearance after an injury. Baltimore, etc., Ry. Co. v. Nugent, 86
Md. 349.
Manner of eliciting expert opinion. — An expert who has heard all
the testimony given as to the sanity of a person may be asked his
opinion thereon, on the supposition that such testimony is true.
Jerry v. Townshend, 9 Md. 145. But see B. & O. R. Co. v. Thompson,
10 Md. 76.
Chap. V.] THE LAW OF EVIDENCE. 279
When an expert has heard the evidence which has been given, he
may be asked his opinion thereon, assuming it to be true, without
putting it in the form of a hypothetical question. Passenger Ry.
Co. v. Tanner, 90 Md. 315.
Hypothetical questions. — Hypothetical questions asked experts are
improper unless they present the facts fairly as they have actually
been given in evidence. Tlie Berry Will Case, 93 Md. 560.
Where the facts are yet to be determined oy the jury, the opinion
of an expert must be elicited by hypothetical questions. Walker v.
Rogers, 24 Md. 237; Jerry V. Townshend, 9 Md. 145.
If the facts as to an injury are doubtful a physician may give his
opinion as an expert upon a hypothetical case. Turnpike Co. V.
Cassell, GO Md. 419.
As to form of hypothetical questions, see Williams v. State, 64
Md. 384.
Medical experts. — Passenger Ry. Co. v. Tanner, 90 Md. 315.
A medical expert may testify as to what in his opinion caused a
hole in the skull of deceased. Davis v. State, 38 Md. 15.
An attending physician is competent to testify as to the capacity
of a testator, without stating the facts upon which his opinion is
based. Crockett v. Davis, 81 Md. 134.
A medical expert may testify whether an abnormal condition
could have been caused by the injury in question. United Railways
Co. v. Seymour, 92 Md. 425.
Expert testimony to show a woman incapable of having issue is
not admissible, for purpose of dissolving a trust for her children.
Uicards v. Safe Deposit Co., 55 Atl. 384.
The testimony of a medical expert as to the sanity of a testator
whom lie has never seen is not properly admissible when there is no
evidence before the court indicating insanity. Berry v. Safe De-
posit Co., 96 Md. 45.
A medical expert may testify as to the effect of a disease upon
the intellectual faculties. Berry v. Safe Deposit Co., 96 Md. 45.
A medical expert may testify as to whether a woman had ever
had a child. Jackson v. Jackson, 80 Md. 176.
Expert opinion is admissible as to the nature and effect of an
injury and also as to how it was caused. Williams v. State, 64 Md.
384.
Laws of another State. — The unwritten law of another State may
be proved by the testimony of one acquainted with it. Green V.
280 A DIGEST OF [Part I.
Trieber, 3 Md. 11; Wilson v. Carson, 12 Md. 54; Railroad Co. v.
Glenn, 28 Md. 287 ; Zimmerman v. Helser, 32 Md. 274.
A practicing lawyer is qualified to testify as to what are the
requisites of a valid marriage in his State. Jackson v. Jackson, 82
Md. 17.
A lawyer of mature age who resides in another State is qualified
as an expert as to the law of that State. Insurance Ce. v. Cashoic,
41 Md. 59.
Pennsylvania.
Subjects of expert testimony. — Practical railroad men may testify
as to safe methods of passing trains on a one-track road. Lewis v.
Heiferi, 116 Pa. 628.
Expert evidence as to a defect in a freight car. Dooner v. Canal
Co., 164 Pa. 17.
Expert evidence is admissible on the question of whether an ex-
amination for coal has been thorough and exhaustive. Wells v.
Leek, 151 Pa. 431.
Expert opinion as to whether a title is good is not admissible.
Murray v. Ellis, 112 Pa. 485.
Expert or other opinion is not admissible as to matters that can
be adequately described to the jury so that ordinary men can
estimate their true bearing upon the issue. Whitaker v. Campbell,
187 Pa. 113; Musick v. Latrobe Borough, 184 Pa. 375; Dooner v.
Canal Co., 164 Pa. 17.
Science and art. — Expert opinion receivable on questions of science.
Forbes V. Caruthers, 3 Yeates, 527; O'Mara v. Com., 75 Pa. 424;
Coyle v. Com., 104 Pa. 117.
Technical terms. — Expert testimony as to the meaning of techni-
cal terms. Miller v. Railway Co., 179 Pa. 350.
Insurance risk. — Expert evidence is not admissible to show that
the danger from fire has been increased. Fire Ins. Co. V. Gruver,
100 Pa. 266.
An expert in life insurance is competent as to the relative hazard
of different occupations. Hartman v. Insurance Co., 21 Pa. 466.
Questions of law. — The testimony of persons not lawyers of the
particular State, if they are acquainted with the law, is admissible.
American Life Ins. Co. v. Rosenagle, 77 Pa. 507.
A Maryland lawyer is competent as an expert on Maryland law.
Bollinger v. Gallagher, 163 Pa. 245, 170 Pa. 84.
Chap. V.] THE LAW OF EVIDENCE. 281
Expert testimony as to the patentable character of an invention.
Haley v. Flaccus, 193 Pa. 521.
In the absence of proof of a foreign law, the common law of the
forum is applied. Musser v. St duffer, 178 Pa. 99.
Handwriting. — Expert evidence as to handwriting. Ulmer v. Cent-
ner, 3 Penny. 453; Graham v. Spang, 16 Atl. 91.
Expert opinion is admissible to prove handwriting. Travis v.
Brown, 43 Pa. 9; Fulton v. Hood, 34 Pa. 365; Burkholder v. Plank,
69 Pa. 225; Ballentine v. White, 77 Pa. 20.
Forgery. — Expert testimony in forgery and counterfeiting. Pepper
& Lewis' Digest of Laws, " Criminal Procedure," sec. 85 ; " Wit-
nesses," sec. 7.
The evidence of a handwriting expert alone is not sufficient to
establish forgery. Bank v. Haldeman. 1 P. & W. 161; Travis v.
Brown, 43 Pa. 9.
Handwriting experts permitted to testify to other facts in con-
nection with writing besides its genuineness. Travis v. Brown, 43
Pa. 9.
Value.— Boteler v. Phila., etc., R. Co., 164 Pa. 397; Fire Ins. Co.
v. Braden, 96 Pa. 81; Mish v. Wood, 34 Pa. 451.
One may become qualified to give opinion as to value by making
inquiries for the purpose. O'Brien v. Railroad Co., 194 Pa. 336.
Damages. — Earning power of an individual is not a subject for
expert testimony. Goodhart v. Penna. R. Co., 177 Pa. 1.
Expert medical testimony. — Com. v. Buccieri, 153 Pa. 535.
A medical expert is competent on questions of mental capacity.
Bitner v. Bitner, 65 Pa. 347 ; Pidcock v. Potter, 68 Pa. 342.
Medical experts as to the nature and properties of powders.
Mertz v. Detweiler, 8 W. & S. 376.
Expert opinion as to length of time one might have lived and
been useful to his family. Pennd. R. Co. v. Henderson, 51 Pa. 315.
Expert opinion is allowed as to the permanency of an injury.
Wilt v. Vickers, 8 Watts, 227.
Evidence of physician that certain spots on overalls were blood
admissible. Com. v. Crossmire, 156 Pa. 304. See McLain v. Com.,
99 Pa. 86.
Whether a horse died of fright or of disease. Piollet v. Simmers.
106 Pa. 95.
282 A DIGEST OF [Pakt 1.
Hypothetical questions. — Olmsted v. Gere, 100 Pa. 127; Miller's
Estate, 20 Pittsb. Leg. J. (N. S.) 428; Reber v. Herring, 115 Pa.
599.
Competency of experts. — Perry v. Jensen, 142 Pa. 125 (adver-
tising business) ; Ballurd v. Erie R. Co., 120 Pa. 141 (construction
of railroad) ; Hass v. Marshall, 14 Atl. 421 (chemist) ; Lineoski v.
&«sg. G'ouZ Co., 157 Pa. 153 (coal mining) ; Schaeffer v. Phila. £
R. R. Co., 1U8 Pa. 209 (mules injured in shipping) ; Fraim v. Fire
Ins. Co., 170 Pa. 151; Griswold v. Gebbie, 126 Pa. 353 (value of
real estate) ; Spring City Gaslight Co. v. Penna., etc., R. Co., 167
Pa. 6 (same) ; Struthers v. Phila., etc., R. Co., 174 Pa. 291 (same).
A woman who has borne four children may testify as to whether
a child was fully developed at birth. Appeal of Allen, 99 Pa. 196.
An undertaker's assistant held not to be qualified as an expert
to testify as to when rigor mortis sets in after death. Com. v. Far
rcll, 1S7 Pa. 408.
An estimate of an experienced builder is competent evidence as to
the value of carpenter work. Warden v. Connell, 196 Pa. 281.
A surveyor as an expert on questions of boundary. Kinley v.
Crane, 34 Pa. 146.
One expert may testify as to the skill of another. Laros v. Com.,
84 Pa. 200.
The warden of a penitentiary allowed to testify that feigning
insanity is common among criminals, and that experts have often
been deceived. Com. v. Wireback, 190 Pa. 138.
Questions for the trial court. — Whether a witness is an expert
and whether the subject requires expert testimony are matters
mainly within the discretion of the trial judge. Ryder v. Jacobs,
182 Pa. 624; Oil Co. v. Gilson, 63 Pa. 146; Sorg v. St. Paul, 63 Pa.
156: Towboat Co. v. Starrs, 69 Pa. 36; Stevenson v. Coal Co., 203
Pa. 316; Struthers v. Phila. P. Co.. 174 Pa, 291.
Expert opinion based upon the testimony of others. — Yardley v.
Cuthbertson, 108 Pa, 395.
Expert testimony as to sanity not allowed when based on the tes-
timony of others and the facts are controverted. Coyle v. Com.,
104 Pa. 117.
Chap. V.] THE LAW OF EVIDENCE. 283
Article 50.*
facts bearing upon opinions of experts.
Facts, not otherwise relevant, have in some cases been
permitted to be proved, as supporting or being inconsistent
with the opinions of experts.
Illustrations.
(a) The question was, whether A was poisoned by a certain poison.
The fact that other persons, who were poisoned by that poison,
exhibited certain symptoms alleged to be the symptoms of that poison,
were deemed to be relevant.9
( b ) The question is, whether an obstruction to a harbour is caused
by a certain bank. An expert gives his opinion that it is not.
The fact that other harbours similarly situated in other respects, but
where there were no such banks, 10 began to be obstructed at about the
same time, is deemed to be relevant.
AMERICAN NOTE.
General.
Authorities. — See Com. v. Leach, 156 Mass. 99; Lincoln v. Taun-
ton Mfg. Co., 9 Allen (Mass.), 181; Tilton v. Miller, 66 Pa. 388;
* I have altered the wording of this article, so as to make it less
absolute than it was in earlier editions. The admission of such evi-
dence is rare and exceptional, and must obviously be kept within nar-
row limits. At the time of Palmer's trial only two or three cases of
poisoning by strychnine had occurred.
9 R. v. Palmer, 1856, printed trial, p. 124, &c, ' Hist. Crim. Law,"
iii. 389. In this case evidence was given of the symptoms attending
the deaths of Acnes Senet. poisoned by strychnine in 1845, Mrs.
Serjeantson Smith, similarly poisoned in 1848, and Mrs. Dove, mur-
dered by the same poison subsequently to the death of Cook, for whose
murder Palmer was tried.
10 Foulkes v. Chadd, 1782, 3 Doug. 157.
284 A DIGEST OF [Part I.
City of Ripon v. Bittel, 30 Wis. C14, G19; City of Bloomington v.
Shrock, 110 111. 219, 51 Am. Rep. 678.
In an action for injuries against a street railroad company, it is
error to admit the testimony of the physician, who examined the
passenger a few days before the trial, which takes place about five
years after the alleged injury, that his condition as then ascertained
might have been either a constitutional ailment or caused by some
external force. Maimone v. Dry-Dock, E. B. & B. R. Co., 68 N. Y.
Supp. 1073. See, also, Doyle v. N. Y. Infirmary, 80 N. Y. 631.
Reading books to a medical expert is permissible in order to test
his knowledge. City of Bloomington v. Shrock, 110 111. 219; Davison
v. People, 90 111. 221; Conn. Hut. Life Ins. Co. v. Ellis, 89 111. 516.
Scientific books are not admissible to contradict evidence of experts.
Forest C. Ins. Co. v. Morgan, 22 111. App. 198.
If an expert bases his opinion upon an author, books may be read
to contradict him. City of Bloomington v. Shrock, 110 111. 219.
The interest of a witness may be shown to affect the value of his
opinion evidence. C. & A. Ry. Co. v. Shannon, 43 111. 339.
One who has testified to value may state the reasons for his opinion.
Chicago, etc., R. R. Co. V. Kern, 9 Ind. App. 505. See, also, Jones v.
Angell, 95 Ind. 376, 378.
Experts may give the grounds of their opinions. Beunk v. Valley
Desk Co., 8 Det. L. N. 767, 87 N. W. 793.
Maryland.
Medical books are not admissible either to support or to contra-
dict an expert. Davis v. State, 38 Md. 15.
Pennsylvania.
Illustrating text.— Tilton v. Miller, 66 Pa. 388; Olmsted v. Gere,
100 Pa. 127.
An expert may be cross-examined as to details on which his opin-
ion is based. Harris v. Schuylkill R. Co., 141 Pa. 242.
Chap. V.] THE LAW OF EVIDENCE. 285
Article 51.
opinion as to handwriting. when deemed to be
relevant.
When there is a question as to the person by whom any
document was written or signed, the opinion of any person
acquainted with the handwriting of the supposed writer that
it was or was not written or signed by him, is deemed to be
a relevant fact.
A person is deemed to be acquainted with the hand-
writing of another person when he has at any time seen that
person write, or when he has received documents purporting
to be written by that person in answer to documents written
by himself or under his authority and addressed to that
person, or when, in the ordinary course of business, docu-
ments purporting to be written by that person have been
habitually submitted to him. 11
Illustration.
The question is. whether a given letter is in the handwriting of A, a
merchant in Calcutta.
B is a merchant in London, who has written letters addressed to A,
and received in answer letters purporting to be written by him. C is
B's clerk, whose duty it was to examine and file B's correspondence.
D is B's broker, to whom B habitually submitted the letters purporting
to be written by A for the purpose of advising with him thereon.
The opinions of B, C, and D on the question whether the letter is in
the handwriting of A are relevant, though neither B. C. nor D ever
saw A write.12
The opinion of E, who saw A write once twenty years ago, is also
relevant. 11 *
11 See Illustration.
i2Z)oe v. Sackermore, 1836. 5 A. & E. 705 (Coleridge, J.); 730
(Patteson. J.) : 739-740 (Denman. C. J.).
i- r?. v. TJnrne Tooke, 1794, 25 S. T. 71-72.
286 A DIGEST OF [Part I.
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 577; Law-
son on Expert and Opinion Evidence (2d ed. ), tit. 2, chap. 2; Ham-
mond's Case, 2 Greenl. (Me.) 33, 11 Am. Dec. 38; Keith v. Lathrop,
10 Cush. (Mass.) 453; People v. Molineux, 168 N. Y. 266.
In case of handwriting the witness states the result of his ob-
servation or judgment as a fact rather than an opinion. Chamber-
lain v. Piatt, 68 Conn. 130.
One who has become familiar with another's handwriting in the
course of his business (e. g., as clerk of a court), may testify, al-
though he has never seen him write. Com. v. Carey, 2 Pick.
(Mass.) 47; Amherst Bank v. Root, 2 Mete. (Mass.) 522; Berg
v. Peterson, 49 Minn. 420; Rogers v. Ritter, 12 Wall. (U. S.) 317;
Burdell v. Taylor, 89 Cal. 613.
But a teller of a bank does not come within this rule, where he
seeks to testify whether some of the checks which went through his
hands in the usual way were forged or not. Brigham v. Peters, 1
Gray (Mass.), 139.
One may be a competent witness to handwriting who cannot read
or write. Foye v. Patch, 132 Mass. 105.
One who has seen him write. — Dig gin's Estate, 68 Vt. 198;
Com. v. Hall, 164 Mass. 152; State v. Harvey, 131 Mo. 339; Karr
v. State, 106 Ala. 1; State v. Farrington, 90 la. 673.
It is enough that he has seen him write once to render the testi-
mony competent. Com. v. Kefus, 135 Mass. 533; Keith v. Lathrop,
10 Cush. (Mass.) 453; Brigham v. Peters, 1 Gray (Mass.), 139;
McNair v. Com., 26 Fa. St. 388 ; State v. Stair, 87 Mo. 268.
To prove handwriting of a party, evidence is admissible from one
who has seen him write, that he believes the writing in question to
be his, but cannot determine it to be his, except by comparing it
with other writings proved to be genuine. Lyon v. Lyman, 9
Conn. 59.
One who has received letters. — Chaffee v. Taylor, 3 Allen
(Mass.), 598; Clark v. Freeman, 25 Pa. 133; Thomas v. State, 103
Ind. 419; Riggs v. Powell, 142 111. 453; Empire Mfg. Co. v. Stuart,
46 Mich. 482. Compare White v. Tolliver, 110 Ala. 300.
Chap. V.] THE LAW OF EVIDENCE. 287
It is not enough that he has seen letters addressed to others.
Neines v. Perry, 113 Mass. 274; Phila., etc., R. Co. v. Hickman,
28 Pa. 318; Gibson v. Troiobridge Co., 96 Ala. 357.
On the question of whether or not the signature to a bill of sale
is in the handwriting of a certain party, a witness, after testifying
that he is familiar with this party's handwriting by virtue of
having received numerous letters, from him, may be asked whether
or not this signature is that of such party. Gross v. Sormani,
64 N. Y. Supp. 300, 50 App. Div. 531.
A person is deemed to be acquainted with the handwriting of
another so as to be able to give his opinion thereon when he has
received letters, subsequently acknowledged by word or acts, to
be genuine by the person whose handwriting is questioned. Johnson
v. Daoerne, 19 Johns. 134.
Handwriting may be proved by one who has seen letters or who has
seen a party write. Woodford v. McClenahan, 4 Gilm. 85.
Expert evidence is admissible upon questions of forgery. Pale v.
People, 3 Gilm. 644.
Handwriting may be proved by the opinion of experts. Bowen v.
A. Nat. Bank, 39 111. App. 579; Rogers v. Tyley, 144 111. 652.
As to opinions with reference to any writing, see Masscy v. F.
Nat. Bank of Virginia, 104 111. 327; Snyder v. McKeever, 10
Brad. 188.
One who has seen a party write may testify that he believes that
an instrument was signed by him. Fash v. Blake, 38 111. 363.
One who has seen a party write but once is competent. Cross v.
People, 47 111. 152.
One may have sufficient knowledge to testify as to handwriting
even though he has not seen the party write. Board of Trustees
Hisenheimer, 78 111. 22.
One who has received letters may testify. Riggs v. Powell, 142 111.
453.
Form of question. — A witness as to handwriting should be asked
first if he is acquainted with the handwriting, then the manner in
which he became acquainted. Pate v. People, 3 Gilm. 643.
Insufficient basis of knowledge. — A letter purporting to come from
one and signed in his name will not furnish a sufficient basis of
knowledge to permit the one who received such letter to give an
288 A DIGEST OF [Part I.
opinion respecting the genuineness of the signature of the putative
writer to another instrument, unless the one whose name was signed
to the letter in some manner subsequently acknowledged the signa-
ture to be his. Talbot v. Hedge, 5 Ind. App. 555, 558.
Testimony of a witness who stated that he used to be acquainted
with the decedent's signature, but had not seen it for several years ;
that it looked like and probably might be her signature; that it was
probably her signature; that it had a general likeness to her signature
as he remembered it, shows such acquaintance with the signature
of the decedent as to enable him to have an impression or belief
amounting practically to an opinion, the genuineness of the signature
being disputed. Talbot v. Hedge, 5 Ind. App. 555, 55G.
New Jersey.
One who has corresponded with a person is a competent witness
as to his handwriting. West v. State, 2 Zab. 212.
But not if he has merely seen writings addressed to others. Gold-
smith v. Bane, 3 Hal. 87.
One who has seen a person write is a competent witness as to
his handwriting. West v. State, 2 Zab. 212; Cook v. Smith, 30
N. J. L. 387.
But not when he saw the person write for the purpose of there-
after being a witness. Whitmore v. Corey, 1 Harr. 267.
Maryland.
A witness is competent if he has seen the party write once, or if
he has corresponded with such party. Smith v. Walton. 8 Gill, 77;
Kdrlen v. Bennett, 8 Gill. 87.
In attacking a witness' opinion as to handwriting, i; is permis-
sible to prove that the party's style of writing has changed. Arm-
strono v. Thurston, 11 Md. 14S.
Pennsylvania.
Authorities. — If the witness says that he believes the handwriting
to be that of the person in question, his evidence is admissible.
Watson v. Brewster, 1 Pa. 381: Cabarga v. Seeger, 17 Pa. 514;
Shitler v. Bremer, 23 Pa. 413: Clark v. Freeman, 25 Pa. 133.
It is sufficient if the witness testifies that "he knows a paper to
Chap. V.] THE LAW OF EVIDENCE. 289
be the handwriting of the party " if the adverse party does not
choose to cross-examine. Whittier v. Gould, 8 Watts, 485.
An opinion may go to the jury even though it be a doubtful one.
SMtler v. Bremer, 23 Pa. 413.
A witness may not testify as to his knowledge of a signature
made by making a mark. Shinkle v. Crock, 17 Pa. 159.
Preliminary proof. — There must be preliminary proof that a wit-
ness knows the handwriting before he may give his opinion. Slay-
maker v. Wilson. 1 P. & W. 216; Taylor v. Sutherland, 24 Pa. 333;
Railroad Co. v. Hickman, 28 Pa. 318.
Witness competent if he has seen person write. — It is enough that
he has seen him write once to render the testimony competent. Mc-
yair v. Com., 26 Pa. 388.
Witness competent who had seen person write his name twice
thirty-two years before and once twenty-three years before. Wilson
v. Van Leer, 127 Pa. 371.
A witness is not competent merely because he says he lias often
seen a person's signature on letters and papers. Allan v. Baliner,
4 Pa. Co. Ct. 16.
An expert is not competent when the basis of his testimony is
that he observed the person write several times for the purpose of
testifying later. Reese v. Reese, 90 Pa. 89.
One who has received letters. — Clark v. Freeman, 25 Pa. 133.
Witness who has become acquainted with handwriting through an
official correspondence is competent to testify as to its genuineness.
Com. v. Smith, 6 S. & R. 568; U. S. v. Simpson, 3 P. & W. 437.
It is not enough that he has seen letters addressed to others.
Phila., etc., R. Co. v. Hickman, 28 Pa. 318.
Article 52.
comparison of handwritings.
Comparison of a disputed handwriting with any writing
proved to the satisfaction of the judge to be genuine is per-
mitted to be made by witnesses, and such writings, and the
evidence of witnesses respecting the same, may be submit-
ted to the Court and jury as evidence of the genuineness
19
290 A DIGEST OF [Pabt I.
or otherwise of the writing in dispute. This paragraph
applies to all courts of judicature, criminal or civil, and to
all persons having by law, or by consent of parties, author-
ity to hear, receive, and examine evidence. 14
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 579 et seq.;
15 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 272; State v.
Thompson, 80 Me. 194; State v. Hastings, 53 N. H. 452; Rowell v.
Fuller, 59 Vt, 688; Gen. Stats, of Rhode Island, chap. 246, sec. 44.
Substantially the English doctrine is held in Hauriot v. Sherwood,
82 Va. 1; Andrews v. Hayden's Admr., 88 Ky. 455; Powers v.
McKenzie, 90 Tenn. 167; Wilson v. Beauchamp, 50 Miss. 24; Koons
v. State, 36 0. St. 195; Saukey v. Cook, 82 la. 125; State v. Zim-
merman, 47 Kan. 242; Marshall v. Hancock, 80 Cal. 82; Holmes
v. Goldsmith, 147 U. S. 150; Costello v. Croicell, 139 Mass. 588;
Costello v. Crowell, 133 Mass. 352; Com. v. Andreas, 143 Mass. 23;
People v. Molineux, 168 N. Y. 267.
Papers may be admitted in some States for the sole purpose of
comparison. State v. Thompson, 80 Me. 194, 6 Am. St. Rep. 172, 13
Atl. 892; Com. v. Allen, 128 Mass. 46. Contra, Snider v. Burks,
84 Ala. 53; People v. Parker, 67 Mich. 222; State v. Thompson, 132
Mo. 301; Himrod v. Gilman, 147 111. 293; Hazleton v. Union Bank,
32 Wis. 34; Stokes v. U. S., 157 U. S. 187.
On cross-examination a person's signature, written in court, may
sometimes be used. Chandler v. Le Barron, 45 Me. 534. But
14 28 Vict. c. 18, s. 8, re-enacting 17 & 18 Vict. c. 125, s. 25, now re-
pealed. See R. v. Silverlock, [1894], 2 Q. B. 766, where it was held
that the solicitor for the prosecution was a proper witness to compare
handwriting proved to be that of the prisoner with that in which
documents produced by the prosecution were written. It seems to be
the case that such a witness must be " skilled " or, as Lord Russell
said, " peritus;" but he need not " have become peritus in the way of
his business or in any definite way;" vulgo, he need not be a profes-
sional expert.
Chap. V.] THE LAW OF EVIDENCE. 291
only in cross-examination. Com. v. Allen, 128 Mass. 46; King v.
Donahue, 110 Mass. 155; U. S. v. Mullaney, 32 Fed. Rep. 370; Brad-
ford v. People, 22 Col. 157.
Whether the court has authority to require a party to write his
name in court, in order that the jury may compare writings, quaere.
It probably has such power. But where the disputed writing had
so faded out that it could not be traced, so that it could not be
seen by the jury, but only described to them, it was held, that it.
was not a case for such an order. Smith v. King, 62 Conn. 521, 522..
In a libel suit, to prove the libel to be in the defendant's hand-
writing, experts, as cashiers of banks, may be admitted to testify
that they have compared the paper with other writings proved to
be his, and that, in their opinion, the paper was written by him, in
a disguised hand. Lyon v. Lyman, 9 Conn. 59.
Letter-press copies cannot be used in comparison. Com. v. East-
man, 1 Cush. (Mass.) 189; Cohen v. Teller, 93 Pa. St. 123.
But photographic copies may when the originals are in court.
Marcey v. Barnes, 169 Mass. 161. Compare Loioe v. Parkersburgh,
etc., R. Co., 39 Md. 36.
Comparison of a disputed signature may be made with writings
admittedly genuine and introduced without objection as evidence
bearing on the issues of the case. Judgment (1895), 35 N. Y.
Supp. 909, 90 Hun, 374, affirmed. Shaw v. Bryant, 53 N'. E. 1132,
157 N. Y. 715.
So with exhibits introduced by the defendant " to show signa-
tures only " when he testifies on the cross-examination that these
are genuine. Judgment (1895), 35 N. Y. Supp. 909, 90 Hun, 374,
affirmed. Shaw v. Bryant, 53 N. E. 1132, 157 N. Y. 715.
In order to prove handwriting by comparison with a standard, the
standard must be properly in evidence. Martin v. Leslie, 93 111.
App. 44.
Papers may be admitted in some States for the sole purpose of
comparison. Himrod v. Oilman, 147 111. 293.
Experts may testify as to alteration of a writing. Rass v. Sebas-
tian, 160 111. 602.
A disputed signature may be compared with another signature.
N. F. Ins. Co. v. Sweet, 46 111. App. 598.
Testimony as to identity of handwritings is admissible. Groff v.
Mutual Life Ins. Co., 92 111. App. 207.
292 A DIGEST OF [Part I.
Evidence to prove the signature to papers, with a view to com-
parison by experts with the signature in dispute, is not admissible.
Hazzard v. Yickery, 78 Ind. 04, 66; Shorb v. Kinzie, 100 Ind. 429,
431; Walker v. Stull, 121 Ind. 436, 440; Swalis v. Grubbs, 126 Ind.
106, 110; Newlon v. Teyner, 126 Ind. 466, 472; Merritt v. Straw,
6 Ind. App. 360, 364 ; Leak v. Thorn, 13 Ind. App. 335.
Writings cannot be admitted for the purpose of comparison only.
Shank v. Butsch, 28 Ind. 19; Huston v. Schindler, 46 Ind. 38.
The Supreme Court will not make a comparison of signatures.
Burdick v. Hunt, 43 Ind. 381.
Comparisons may be made partly out of court. Campbell v.
Conner, 15 Ind. App. 23.
The alteration of a writing may be proved by expert testimony.
Nelso?i v. Johnson, 18 Ind. 329.
The standard. — In the comparison of handwriting, the standard
must be conceded to be genuine. Bowen v. Jones, 13 Ind. App. 193;
Merritt v. Straic, 6 Ind. App. 360.
A witness who has testified that a signature was a forgery cannot
be shown purported signatures and then asked whether, with bis
present knowledge, he regards the writing as a forgery. McDonald
v. McDonald, 142 Ind. 55. See Shorb v. Kinzie, 80 Ind. 500, 502.
The standard of comparison must be connected with the case.
White Co. v. Gordon, 124 Ind. 495; Jones v. State, 60 Ind. 241.
Writings in evidence which are confessedly genuine may be used
by the jury as the standard of comparison. Shorb v. Kinzie, 100
Ind. 429; Chance v. Gravel Road Co., 32 Ind. 472; White Co. v.
Gordon, 124 Ind. 495.
Experts may express an opinion on comparing a signature with one
of known authenticity. Forgey v. Bank, 66 Ind. 123; Walker v.
Steele, 121 Ind. 436; Burdick v. Hunt, 43 Ind. 381; Chance v. Gravel
Road Co., 32 Ind. 472 ; Huston v. Schindler, 46 Ind. 38.
Or proved to have been respected, treated, and acted upon as such
by all parties. Clark v. Wyatt, 75 Ind. 271.
A microscopic enlargement of a disputed signature, where the
original is in court, and where it is not proposed to compare it with
enlarged copies of signatures admitted to be genuine, cannot be sub-
mitted to the jury for inspection. White Seicing, etc., Co. v. Gordon,
124 Ind. 495, 498.
As to the cross-examination of witnesses, who testify as to the com-
parison of handwritings, see Johnston Harvester Co. v. Miller, 72
Mich. 265.
Chap. V.] THE LAW OF EVIDENCE. 293
Comparison is not allowed with papers not in evidence. Howard
v. Patrick, 43 Mich. 121.
Papers cannot be admitted in evidence for the sole purpose of
making comparisons. People v. Parker, 67 Mich. 222; Dietz v. Bank,
69 Mich. 287.
The standard must be proved to be the writing of the persons whose
handwriting is in question. Van Sickle v. People, 29 Mich. 61.
Where an accommodation maker sued upon a note and defends upon
the ground that it has been altered by filling in a space, which was
left blank by him, it is an error to allow him to compare by intro-
ducing in evidence other notes subsequently written for the jury "a
notice. Weidman v. Symes, 116 Mich. 619.
New Jersey.
Authorities. — Handwriting may be proved by inspection and by a
comparison by an expert. Yeomans v. Petty, 40 N. J. Eq. 495.
A witness must be allowed to see enough of a writing to make a
fair comparison, though he need not see all of it. West v. State,
2 Zab. 212, 240.
The jury not allowed to compare handwriting. Crissman v.
Schoonover, Pen. 525.
Statute. — Comparison may be made by witnesses, but the writing
used for comparison must have been made prior to the dispute.
G. S. 1895, "Evidence," 19.
Maryland.
Authorities. — See as to allowing comparison as a basis for expert
opinion, Code, art. 35, sec. 6.
Earlier cases not allowing such opinion are: Herrick v. Sworn-
ley, 56 Md. 439; Killer v. Johnson, 27 Md. 6; Tome v. Railroad Co.,
39 Md. 36; Armstrong v. Thurston, 11 Md. 148.
Direct comparison of hands not allowed, but a genuine writing
may be handed to a witness to refresh his recollection. Smith v.
Walton, 8 Gill, 77.
Handwriting admittedly genuine may be handed to a witness who
has given his opinion as to the genuineness of another writing in
order to test that opinion. Bank v. Armstrong, 66 Md. 113.
Letters admittedly genuine may be given to the jury for compari-
son, but such letters should be selected for that purpose whose con-
294 A DIGEST OF [Pabt I.
tents are not likely to influence the jury in any way. Gambrill v.
Schooley, 95 Md. 260.
The jury may compare a disputed handwriting with one admit-
tedly genuine already in evidence for another purpose. Williams v.
Drexel, 14 Md. 566.
As to photographic copies when the originals are in court, see
Lowe v. Parkersburgh R. Co., 39 Md. 36.
Statute. — Witnesses are allowed to make comparison of writings.
P. G. L. 1888, art. 35, sec. 6.
Pennsylvania.
Authorities. — Genuine signatures are admissible for use by the
jury in comparing. Ultner v. Centner, 3 Penny. 455.
Comparison of handwriting can be made only by the jury. Hay-
cock v. Greup, 57 Pa. 438; Clayton v. Hiebert, 3 Brewst. 176; Au-
mick v. Mitchell, 82 Pa. 211.
Comparisons of genuine writings with the one questioned may
be made by the jury, but not by experts. Rockey's Estate, 155 Pa.
453.
Comparison allowed on a question of forgery. Gujfey v. Deeds,
29 Pa. 378.
Comparison allowed as corroborative evidence. Bank v. Whiir-
hill, 10 S. & R. 110; Bank v. Haldeman, 1 P. & W. 161; Callan v.
Gaylord, 3 Watts, 321; Baker v. Haines, 6 Whart. 284; Travis v.
Brown, 43 Pa. 9.
A witness may refresh his memory of handwriting by inspecting
a genuine paper, but he must testify independently of the compari-
son. McXair v. Com., 26 Pa. 388.
Comparison of handwriting is not alone sufficient evidence if
better is obtainable. Vickroy v. Skelley, 14 S. & R. 372: O'Connor
v. Layton, 2 Am. L. Reg. 120; Leslie v. Heald, 3 Phila. 55.
Testimony that a signature is genuine, based on mere compari-
son, is not admissible. Aumick v. Mitchell, 82 Pa. 211; Berryhill
v. Kirchner. 96 Pa. 4S9 ; Rockey's Estate, 155 Pa. 453.
The test papers. — Writing offered as a test for comparison must
be proved conclusively to be genuine. Baker v. Haines. 6 Whart.
284; Depne v. Place. 7 Pa. 428; Travis v. Broion, 43 Pa. 9.
A check is not admissible in evidence merely on the testimony
of a witness who savs the signature looked like that of the person
Chap. V.] TEE LAW OF EVIDENCE. 295
it represented, especially as a test paper. Fullam v. Rose, 181 Pa.
138.
A letter-press copy of handwriting cannot be used for compari-
son. Cohen v. Teller, 93 Pa. 123.
Nor may photographic copies be so used. Vanderslice v. Snyder,
4 Pa. Dist. 424; Ulmer v. Gentner, 3 Penny. 453.
Article 53.
opinion as to existence of marriage, when relevant.
When there is a question whether two persons are or are
not married, the facts that they cohabited and were treated
by others as man and wife are deemed to be relevant facts,
and to raise a presumption that they were lawfully married,
and that any act necessary to the validity of any form of
marriage which may have passed between them was done ;
but such facts are not sufficient to prove a marriage in a
prosecution for bigamy or in proceedings for a divorce, or
in a petition for damages against an adulterer. 15
AMERICAN NOTE.
General.
Authorities. — Greenleaf on Evidence (15th ed.), vol. 1, sec. 107;
vol. 2, sec. 462 et seq.j Abbott's Trial Evidence (2d ed.), p. 104.
First paragraph of the text. Young v. Foster, 14 N. H. 114,
118; State v. Sherwood, 68 Vt. 419 (citing this article); Green-
wait v. McEnelley, 85 Pa. St. 352; Maryland v. Baldwin, 112 U. S.
15 Morris v. Miller, 1767, 4 Burr. 2057; Birt v. Barlow, 1779,
1 Doug. 170; and see Catherwood v. Caslon, 1844, 13 M. & W. 261.
Compare R. v. Mainwariny, 1856, Dear. & B. 132. See, too,- De
Thoren v. A. G., 1876, 1 App. Cas. 686; Piers v. Piers, 1849, 2 H. L.
Ca. 331. Some of the references in the report of De Thoren v. A. G.
are incorrect.
296 A DIGEST OF [Part I.
490; Wallace's Case, 49 N. J. Eq. 530; Peet v. Peet, 52 Mich. 464;
White v. White, 82 Cal. 427; Blackburn v. Crawford, 3 Wall. (U.
S.) 175, 191; Budington v. Munson, 33 Coan. 487; Erwin v. English,
61 Conn. 509; >S'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. <Bayntun, 1841, 1 Q. B. 118.
12 Plumer v. Briscoe, 1847, 11 Q. B. 46. Bailey v. Bidwell, 1844,
13 M. & W. 73, would perhaps justify a slight enlargement of the ex-
ception, but the circumstances of the case were very peculiar. Mr.
Taylor (ss. 1852-3) considers it doubtful whether the rule extends to
instruments executed by corporations, or to deeds enrolled under the
provisions of any Act of Parliament, but his authorities hardly seem
to support his view ; at all events, as to deeds by corporations.
358 A DIGEST OF [Pabt II.
Hewitt, 19 Me. 281, 285; Curtis v. Belknap, 21 Vt. 433; Kitchen v.
Smith, 101 Pa. St. 452; Steiner Bros. v. Tranum, 98 Ala. 35; Rand
v. Z)od$re, 17 N. H. 343, 357.
Recorded instruments. — In some States recorded instruments may
be proved without calling the subscribing witnesses. Knox v. Sillo-
way, 1 Fairf. (Me.) 201 ; Kelsey v. Eanmer, 18 Conn. 311, 318; Gragg
v. Learned, 109 Mass. 167; Burghart v. Turner, 12 Pick. (Mass.) 534,
538; Scanlon v. Wright, 13 Pick. (Mass.) 523, 527, 25 Am. Dec. 344.
See Broion v. Oldham, 123 Mo. 621.
Interest claimed by opponent. — Sustaining text . McGregor v.
Wait, 10 Gray (Mass.), 72, 69 Am. Dec. 305; Adams v. O'Connor,
100 Mass. 515; Woodstock Iron Co. v. Reed, 84 Ala. 493; Balliett v.
Fink, 28 Pa. St. 266.
Secondary evidence of contents. — Jackson v. Woolsey, 11 Johns. 446.
New Jersey.
Authorities. — An attesting witness to a lost deed need not be
called when the object of proving its contents is not to establish
title but to establish the fact of a covenant therein. Ketcham v.
Brooks, 27 N. J. Eq. 347.
Wills probated in another State may be recorded in New Jersey,
and such record dispenses with the necessity of producing attesting
witnesses to prove the will. Kelson v. Potter, 50 N. J. L. 324.
Pennsylvania.
If the maker of a note admits his signature, the attesting witness
need not be called. Williams v. Floyd, 11 Pa. 499.
Where a document comes in incidentally in a suit between
strangers, the attesting witnesses need not be called. Kitchen V.
Smith, 101 Pa. 452.
Interest claimed by opponent. — Sustaining text. Balliett v. Fink,
28 Pa. 266.
Chap. IX.] THE LAW OF EVIDENCE. 359
Article 68.
proof when attesting witness denies the execution.
If the attesting witness denies or does not recollect the
execution of the document, its execution may be proved by
other evidence. 13
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed. ), sec. 572; 11
Am. & Eng. Encyclopaedia of Law (2d ed. ), p. 598; Frost v. Deer-
ing, 21 Me. 156; Whitaker v. Salisbury, 15 Pick. (Mass.) 534, 544;
Thomas v. Le Baron, 8 Mete. (Mass.) 355; Tompson v. Fisher, 123
Mass. 559; Patterson v. Tucker, 9 N. J. L. 322; Hamsher v. Kline,
57 Pa. St. 397; Barnewall v. Murrell, 108 Ala. 366; Webb v. Dye, 18
W. Va. 376. Compare Frost v. Deering, 21 Me. 156.
Sustaining rule of the text. — Duckwall v. Weaver, 2 Ohio, 13, hold-
ing that this is not impeaching the credit of one's own witness.
If a subscribing witness to a will fail to remember or deny seeing
testator sign, it may be shown by other witnesses that he did see the
signing. Thompson v. Thompson, 2 Weekly Law Mag. 84.
Where a writing is pleaded the execution need not be proved unless
it is denied. Belton v. Smith, 45 Ind. 291 ; Patterson v. Crawford,
12 Ind. 241; Kellar v. Boatman, 49 Ind. 104; Denny v. University,
16 Ind. 220.
A recorded deed may be proved by the record, when the person
offering the evidence is not a party to the conveyance and has not
the control of it. Doe dent. Gardner v. Vandewater, 7 Blackf. 6.
The execution and contents of a lost deed need not be proved by the
subscribing witness. Raynor v. Norton, 31 Mich. 210; Eslow v.
Mitchell, 26 Mich. 500.
The record of a deed is, in the absence of statute, not primary evi-
dence of genuineness. Brown v. Cady, 11 Mich. 535.
13 " Where an attesting witness has denied all knowledge of the
matter, the case stands as if there were no attesting witness: " Tal-
bot v. Bodson, 1816, 7 Tau. 251, 254.
360 A DIGEST OF [Part II.
New Jersey.
Authorities. — Patterson v. Tucker, 9 N. J. L. 322; Ketchum v.
Johnson, 4 N. J. Eq. 370.
Maryland.
If an attesting witness denies either his attestation or the due
execution of the instrument, such fact may be proved by other evi-
dence. Handy v. State, 7 H. & J. 42.
If a subscribing witness proves his signature but has no recol-
lection of having seen the party to the instrument sign it, that fact
may be proved by the circumstances. Miller v. Honey, 4 H. & J.
241. See Edelen v. Gough, 5 Gill, 103.
Pennsylvania.
If a subscribing witness' testimony is insufficient, other proof is
admissible. Harrington v. Gable, 81 Pa. 406.
If an attesting witness has forgotten, other proof of execution is
admissible. Fritz v. Commissioners, 17 Pa. 130.
If an attesting witness has forgotten the whole occurrence, but
recognizes his signature, the document is admissible. Bennett v.
Fulmer, 49 Pa. 155; Hamsher v. Kline, 57 Pa. 397.
Article 69.
peoof of document not required by law to be
attested.
An attested document not required by law to be attested
may in all cases whatever, civil or criminal, be proved as if
it was unattested. 14
AMERICAN NOTE.
General.
Authorities. — 3 Taylor on Evidence (Chamberlayne's 9th ed.),
p. 12296 et seq.; 11 Am. & Eng. Encyclopaedia of Law (2d ed.),
p. 593 (stating that the common-law rule is otherwise).
14 28 & 29 Vict. c. 18, ss. 1, 7; re-enacting 17 & 18 Vict. c. 125,
s. 26, now repealed.
Chap. IX.] THE LAW OF EVIDENCE. 361
Sustaining the text. Houghton v. Jones, 1 Wall. 702, 706 ; Medary
v. Cathers, 161 Pa. St. 87.
Contra to text. Thompson v. Fisher, 123 Mass. 559; Homer v. Wal-
lis, 11 Mass. 309; Giannone v. Fleetwood, 93 Ga. 491.
Relative to proving unattested documents, see Seibold v. Rogers,
110 Ala. 438; Nichols v. Allen, 112 Mass. 23; Pullen v. Hutchinson,
25 Me. 249.
The common law is contrary to the text. If a note be attested by
witnesses, the genuineness of the signature cannot be proved by a com-
parison of hands, without calling them. Laic v. At water, 2 Root
(Conn.), 72; Knap v. Sacket, 1 Root (Conn.), 502.
The common-law rule is otherwise. See Sackett v. Sackett, 7 Wend.
94.
With reference to proving documents unattested, see St. John ▼.
Amer. Ins. Co., 2 Duer, 419.
As to the effect thereof where the circumstances of the case were
peculiar, see Sanger v. Merritt, 131 N. Y. 614, 43 N. Y. St. R. 99,
affirming 39 N. Y. St. R. 894. See 120 N. Y. 129.
Pennsylvania.
Sustaining the text. Medary v. Cathers, 161 Pa. 87.
Article 70.
secondary evidence.
Secondary evidence means —
(1) Examined copies, exemplifications, office copies, and
certified copies : 15
(2) Other copies made from the original and proved to
be correct :
(3) Counterparts of documents as against the parties
who did not execute them : 16
(4) Oral accounts of the contents of a document given by
some person who has himself seen it.
« See Chapter X. 16 Munn v. Qodbold, 1825, 3 Bing. 292.
362 A DIGEST OF [Pabt II.
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 84 et seq.;
11 Am. & Eng. Encyclopaedia of Law (2d ed.), pp. 535, 583 et seq.
In giving testimony, a witness must recollect the substance of the
document. Camden v. Belgrade, 78 Me. 204; Richard's Appeal, 122
Pa. St. 547 ; Mayor of Baltimore v. War, 77 Md. 593.
The correctness of a copy may be proved by the testimony of one
who compared it with a paper read as the original by another.
Lynde v. Judd, 3 Day (Conn.), 500.
A copy of a copy may be competent evidence. It is not, however,
if the original is in existence. Cameron v. Peck, 37 Conn. 555, 558;
Winn v. Patterson, 9 Pet. (U. S.) 663.
Due diligence to procure the attendance of the subscribing wit-
nesses must be proved before secondary evidence of the execution of
a written contract can be admitted. Mills v. Twist, 8 Johns. 121 ;
Willoughby v. Carleton, 9 Johns. 136. See People v. Rowland, 5 Barb.
449.
Proof of the genuineness of an instrument is always necessary,
even if secondary evidence of its contents is admitted. Nichols v.
Kingdom Iron Ore Co., 56 N. Y. 618.
If a corporation has omitted to make a record of its actions, sec-
ondary evidence may be introduced. St. Mary's Church v. Cagger, 6
Barb. 576; Smith v. Helmer, 7 Barb. 416.
Where the defendant gave a copy to the plaintiff to guide him in
performing his contract, this is evidence without accounting for the
original. Moore v. Belloni, 10 J. & S. 184. But the draft of an un-
executed contract containing the supposed agreement of the parties
is not evidence. Flood v. Mitchell, 4 Hun, 813. 68 X. Y. 507.
Examined, exemplified, office, and certified copies. — See articles
75-79, inclusive.
Other copies from the original. — De Groot v. Fulton Fire Insurance
Co., 4 Rob. 504; Campbell v. Wright, 8 N. Y. St. R. 471, 118 N. Y.
594.
A copy containing the entire account, which thereby duplicated
items contained in the original, was not, by reason thereof, to be
rejected, for the fact that the items were duplicated became apparent
on inspection. Hodnett v. Gault, 71 N. Y. Supp. 831.
Chap. IX.] THE LAW OF EVIDENCE. 363
Letter-press copies of documents come under the head of secondary
evidence. Foot v. Bently, 44 N. Y. 166, 4 Am. Rep. 652. See, also,
Haas v. Storner, 21 Misc. Kep. 601; Boyer v. Rhinehart, 44 N. Y.
St. R. 370, 17 N. Y. Supp. 346; affirmed, 137 N. Y. 564.
Counterparts. — Counterparts of documents are secondary evidence.
Nicoll v. Burke, 8 Abb. N. C. 213. See Roland v. Pinckney, 8 Misc.
Rep. 458.
Oral accounts of contents of a document. — Artcher v. McDuffie,
5 Barb. 147 ; Scott v. Betts, Lalor, 363 ; Chrysler v. Griswold, 43 N. Y.
209.
New Jersey.
Copies and parol proof. — Smith v. Axtell, 1 N. J. Eq. 494 ; Seivard
v. Vandegrift, Pen. 92e.
A by-law of the board of freeholders not provable by a printed
copy. Downie v. Passaic, 54 N. J. L. 223.
A copy of an entry in a family Bible not admissible. Ryerson v.
Orover, Coxe, 458.
A compared copy. — Tindall v. Mclntyre, 4 Zab. 147.
After proving that a document is lost, a copy may be introduced
and proved to be correct. Bozorth v. Davidson, 3 N. J. L. 200.
Maryland.
Authorities. — The rules as to secondary evidence of the contents
of lost instruments are the same in civil and in criminal law.
Brashears v. State, 58 Md. 563.
Oral testimony of a fact is not necessarily secondary,, even though
there is written evidence of the same fact. In such case it is ad-
missible because not given to prove the contents of a writing but
to prove a fact outside thereof. Glenn v. Rogers, 3 Md. 312;
Cramer v. Shriner, 18 Md. 140.
To prove value, evidence of the price of similar goods in the
neighborhood is not secondary, though it is not so strong as the
evidence of a witness who knows the price of these goods. William-
son v. Dillon, 1 H. & G. 444.
When a party has suppressed evidence the court will be more
liberal in allowing the facts to be proved by weaker classes of evi-
dence. Love v. Dilley, 64 Md. 238.
/
364 A DIGEST OF [Pabt IT.
A telegram as delivered is only secondary evidence, and is ad-
missible as such only on proof that it was actually sent by the
person in question. Smith v. Easton, 54 Md. 138.
In giving testimony, a witness must recollect the substance of the
document. Mayor of Baltimore v. War, 77 Md. 593.
Copies. — A copy of a document is only secondary evidence. Hay-
ward v. Carroll, 4 H. & J. 518; Green v. Caulk, 16 Md. 556.
A press copy of a letter is secondary evidence. Marsh v. Hand,
35 Md. 123.
Pennsylvania.
Authorities. — Evidence is deemed secondary only when it indi-
cates that there is better in existence. Cutbush v. Gilbert, 4 S. & R.
551.
The best evidence in one's power must be produced. Hamilton V.
Van Swearingen, Add. 48; Bank v. Whitehall, 16 S. & R. 89; Bry-
ant v. Stilwell, 24 Pa. 314; White's Estate, 32 Leg. Int. 430.
A book of original entry is not necessarily the best evidence of
goods sold. Adams v. Steamboat Co., 3 Whart. 75.
In proving foreign statutes as a fact, the best evidence rule is
relaxed on the ground of convenience. Phillips v. Gregg, 10 Watts,
158.
Degrees in secondary evidence. — A facsimile press copy of a let-
ter is better evidence than oral testimony. Stevenson v. Hoy, 43 Pa.
191.
Copies. — Entries in a family Bible copied from another record
are secondary evidence. Curtis v. Patton, 6 S. & R. 135.
A correct copy admissible only as secondary evidence. Sweigart
v. Lowmarter, 14 S. & R. 200.
A copy is secondary evidence and admissible only in case the
original cannot be produced. Shortz v. Unangst, 3 W. & S. 45.
A record of an instrument is not admissible, if not required by
law to be kept. Fitler v. Shoticell, 7 W. & S. 14.
The witness testifying as to the contents of a document must have
actual knowledge of it and be able to give its substance. Appeal of
Richards, 122 Pa. 547.
Chap. IX.] THE LAW OF EVIDENCE. 365
Article 71.
cases in which secondary evidence relating to
documents may be given.
Secondary evidence may be given of the contents of a
document in the following cases —
(a) When the original is shown or appears to be in the
possession or power of the adverse party,
and when, after the notice mentioned in Article 72, he
does not produce it ; 17
(b) When the original is shown or appears to be in the
possession or power of a stranger not legally bound to pro-
duce it, and who refuses to produce it after being served
with a subpoena duces tecum, or after having been sworn as
a witness and asked for the document and having admitted
that it is in court ; 18
(c) When the original has been destroyed or lost, and
proper search has been made for it ; 19
17 R. v. Watson, 1788, 2 T. R. at p. 201. Entick v. Carrington,
1765, 19 S. T. at p. 1073, is cited by Mr. Phillips as an authority for
this proposition. I do not think it supports it, but it shows the
necessity for the rule, as at common law no power existed to compel
the production of documents.
18 Miles v. Oddy, 1834, 6 C. & P. at p. 732; Marston v. Dowries,
1834, 1 A. & E. 31.
19 1 Ph. Ev. s. 452; 2 Ph. Ev. 281 ; Taylor (from Greenleaf), s. 429.
The loss may be proved by an admission of the party or his attorney;
R. v. Haworth, 1830, 4 C. & P. 254.
360 A DIGEST OF [Part II.
(d) When the original is of such a nature as not to be
easily movable, 20 or is in a country from which it is not per-
mitted to be removed ; 21
(e) When the original is a public document; 22
(/) When the document is an entry in a banker's book,,
proof of which is admissible under Article 36.
(g) When the original is a document for the proof of
which special provision is made by any Act of Parliament,,
or any law in force for the time being; 22 or
(h) When the originals consist of numerous documents
which cannot conveniently be examined in court, and the
fact to be proved is the general result of the whole collec-
tion: provided that that result is capable of being ascer-
tained by calculation. 23
Subject to the provisions hereinafter contained any sec-
ondary evidence of a document is admissible. 24
In case (/) the copies cannot be received as evidence
unless it be first proved that the book in which the entries
copied were made was at the time of making one of the ordi-
20 Mortimer v. McCallan, 1840, 6 M. & W. at pp. 67, 68 (referring
to the case of a libel written on a wall) ; Bruce v. Nicolopulo, 1855,
11 Ex. 133 (the ease of a placard posted on a wall).
21 Alivon v. Furnival, 1834, 1 C. M. & R. 277, 291-2.
22 See Chapter X.
23 Roberts v. Boxen, 1791, 1 Peake, 116; Meyer v. Sefton, 1817, 2
Star, at p. 276. The books, &c, should in such a case be ready to be
produced if required. Johnson v. Kershaw, 1847, 1 De G. & S. at
p. 264.
24 If a counterpart is known to exist, it is the safest course to pro-
duce or account for it: Munn v. Godbold, 1825, 3 Bing. 297; R. v.
Castleton, 1795, 6 T. R. 236.
Chap. IX.] TEE LAW OF EVIDENCE. 367
nary books of the bank, and that the entry was made in the
usual and ordinary course of business, and that the book
is in the custody and control of the bank, which proof may
be given orally or by affidavit by a partner or officer of the
bank, and that the copy has been examined with the original
entry and is correct, which proof must be given by some
person who has examined the copy with the original entry
and may be given orally or by affidavit. 25
In case (h) evidence may be given as to the general re-
sult of the documents by any person who has examined
them, and who is skilled in the examination of such docu-
ments.
Questions as to the existence of facts rendering secondary
evidence of the contents of documents admissible are to be
decided by the judge, unless in deciding such a question the
judge would in effect decide the matter in issue.
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 558 et seq.;
1 Wharton on Evidence, sec. 150 et seq.
If there are several originals, all must be accounted for in order
to let in secondary evidence. Dyer v. Fredericks, 63 Me. 173, 592.
Some authorities hold that, if a document comes in collaterally,
secondary evidence may, in all cases, be introduced. Phinney v.
Bolt, 50 Me. 270.
In some States, as in England, there are no degrees in secondary
evidence. Com. v. Smith, 151 Mass. 491.
In possession of adverse party. — Thayer v. Middlesex Mut. Ins.
Co., 10 Pick. (Mass.) 326; Dana v. Kemble, 19 Pick. (Mass.) 112;
Narragansett Bank v. Atlantic Silk Co., 3 Mete. (Mass.) 282; Cool-
idge v. Brigham, 5 Mete. (Mass.) 68; Loring v. Whittemore, 13 Gray
25 42 & 43 Vict. c. 11, ss. 3, 5.
368 A DIGEST OF [Part II.
(Mass.), 228; Dooley v. Cheshire Glass Co., 15 Gray (Mass.), 494;
Day v. Floyd, 130 Mass. 488; Morse v. Woodworth, 155 Mass. 233, 29
N. E. 525; Com. v. Shurn, 145 Mass. 150; Dunbar v. U. S., 156 U. S.
185; Bishop v. Amer. Preserver's Co., 157 111. 284; Carland v. Cun-
ningham, 37 Pa. St. 228; Eeagle v. Pessell, 91 Mich. 618; Golden v.
Conner, 89 Ala. 598; Overlook v. #aM, 81 Me. 348; Wesson v. #i$r7ir,
18 Me. 281; Lowell v. FKnf, 20 Me., pt. 2, 401; Orr v. CZarfc, 62 Vt.
136, 19 Atl. 929; Sedgioick v. Waterman, 2 Root (Conn.), 434; Mor-
gan v. Minor, 2 Root (Conn.), 220; .Koss v. Bruce, 1 Day (Conn.),
100.
Document lost or destroyed. — Tobin v. Shaw, 45 Me. 331, 71 Am.
Dec. 547; Gates v. Bowker, 18 Vt. 23; Spear v. TtZson, 24 Vt. 420;
Stebbins v. Duncan, 108 U. S. 32; Gorgas v. fferte, 150 Pa. 538;
McConnell v. Wifofes, 153 Mass. 487; Hatch v. Carpenter, 9 Gray
(Mass.), 271; Oriental Bank v. Haskins, 3 Mete. (Mass.) 332, 37 Am.
Dec. 140.
But one who has intentionally destroyed an instrument cannot
give evidence as to its contents, without first giving evidence to
rebut the suspicion of fraud, arising from the act. Joannes v. Ben-
nett, 5 Allen (Mass.), 169; Kelly v. Riggs, 2 Root (Conn.), 128;
Kelsey v. Eanmer, 18 Conn. 317; Elwell v. Mersick, 50 Conn. 274;
Bank of United States v. Sill, 5 Conn. 106, 13 Am. Dec. 44.
Diligent search must be made. McCollister v. Yard, 90 la. 621 ;
Mullauphy Bank v. Schott, 135 111. 655; Darrow v. Pierce, 91 Mich.
63. See Gunther v. Bennett, 72 Md. 384.
The amount of evidence required to prove the loss of a written
instrument, for the purpose of admitting secondary evidence of its
contents, depends much upon the nature of the instrument, the
reasons for its preservation, and the circumstances of the case.
Waller v. Eleventh School District, 22 Conn. 333.
The question whether the loss of a document has been satis-
factorily proved, so that secondary evidence of its contents can be
admitted, is wholly one of discretion with the judge trying the case,
and cannot be reviewed on error. Elwell v. Mersick, 50 Conn. 274;
Witter v. Latham, 12 Conn. 399, 400.
Where the plaintiff declares upon a writing, and alleges that it is
lost or destroyed, the loss or destruction is a preliminary question
for the court, not a material and traversable fact to be determined
by the jury. Witter v. Latham, 12 Conn. 400; Fitch v. Bogue, 19
Conn. 289, overruling Coleman v. Wolcott, 4 Day (Conn.), 394, and
Paddock v. Biggins, 2 Root (Conn.), 483.
Chap. IX.] THE LAW OF EVIDENCE. 369
Out of jurisdiction. — Where a document is out of the jurisdic-
tion in the hands of a third party, secondary evidence is admissible.
Elwell v. Mersick, 50 Conn. 274 ; Shepard v. Giddings, 22 Conn. 283 ;
Stevens v. Miles, 142 Mass. 571; L'Herbette v. Pittsfield Nat.- Bank,
162 Mass. 137; Eaton v. Campbell, 7 Pick. (Mass.) 10; Knicker-
bocker v. Wilcox, 83 Mich. 200 ; Fosdick v. Van Horn, 40 O. St. 459 ;
Burton v. Driggs, 20 Wall. (U. S.) 125, 134; Memphis, etc., R. Co.
v. Hembree, 84 Ala. 182; Otto v. Trump, 115 Pa. St. 425, 430; Zaller-
bach v. Allenberg, 99 Cal. 57; Bowman v. Sanborn, 5 Fost. (N. H.)
87, 112; Beattie v. Hilliard, 55 N. H. 428; Knowlton v. Knowlton,
84 Me. 283, 24 Atl. 847; Burnham v. Wood, 8 N. H. 334; Little v.
Paddleford, 13 N. H. 167; Lord v. Staples, 23 N. H. 448.
In possession of third person. — Sherwood v. Hubbel, 1 Root (Conn.),
498; Halscy v. Fanning, 2 Root (Conn.), 101; Lynde v. </ttdd, 3 Day
(Conn.), 499; &<oftoe v. St. Paul, etc., R. Co., 40 Minn. 545; State v.
Gurnec, 14 Kan. Ill; Corbett v. Gibson, 16 Blatchf. 334.
Not easily movable. — North Brookfield v. Warren, 16 Gray (Mass.),
171, 174; Stearns v. Doc, 12 Gray (Mass.), 482.
Numerous documents. — Sustaining text . Boston & W. R. R. Co.
v. Dana, 1 Gray (Mass.), 83; Burton v. Driggs, 20 Wall. 125; Chicago,
etc., R. Co. v. Wolcott, 141 Ind. 267 ; Wolford v. Farnham, 47 Minn.
95; State v. Findley, 101 Mo. 217.
Not produced on notice. — If a document is not produced on notice,
secondary evidence is admissible. Bishop v. Am. Preserve Co., 157
111. 284.
Preliminary evidence. — Blakely v. Pease, 95 111. App. 341.
A foundation must be laid for secondary evidence. Chisholm v.
Beaver L. S. Co., 18 111. App. 131 ; Wing v. Sherrer, 77 111. 200.
Before secondary evidence can come in, the absence of the original
must be accounted for. Massey v. Farmers' Nat. Bank, 113 111. 334,
338.
As to the search necessary for the introduction of proof of the con-
tents of tax receipts, under Hurd's Rev. Stat., 1S99, p. 1420, chap.
120, sec. 163, see Scott v. Bassett, 194 111. 602, 62 N. E. 914; Crocker
V. Lowenthal, 83 111. 579; Hazen v. Pierson, 83 111. 241; McDonald
v. Stark, 176 111. 456, 52 N. E. 337; Harrall v. Enterprise Sav. Bank,
182 111. 538, 56 N. E. 63; Hawley v. Hawley, 187 111. 321, 58 N. E.
332 ; Wells v. Miller, 37 111. 276.
In order to admit copies of letters, the proper foundation for sec-
24
370 A DIGEST OF [Part II.
ondary evidence must be laid. La Salle P. B. Co. v. Coe, 53 111. App.
506.
Proof of loss in suit on a bond must be clear and satisfactory.
McCart v. Wakefield, 72 111. 101.
In order to introduce secondary evidence, it is not necessary that
proof of the loss be beyond the possibility of a mistake. Western
Union Tel. Co. v. Kemp Bros., 35 111. App. 583.
Preliminary proof of loss is necessary as required by 3 Star. & C.
Annot. Stat., 1896, p. 3360, and 1 Star. & C. Annot. Stat., 1896^
p. 955. Glos v. Hallowell, 90 111. App. 65, 60 N. E. 62.
Search for a paper, in order to let in secondary evidence, must be
made at the place where it would naturally be found. Doyle v.
Wiley, 15 111. 576; Cook v. Hunt, 24 111. 535, 550; Stow v. People,
25 111. 81; Rankin v. Crow, 19 111. 626; Mariner v. Saunders, 5 Gilrm
113.
In order to render a copy of a mortgage admissible, reasonable
efforts to procure the original must have been made. Roberts v.
Haskell, 20 111. 59.
Proof of loss is preliminary to the introduction of a copy. Pardee
v. Lindley, 31 111. 174.
Affidavit of loss, etc. — Under Hurd's Rev. Stat., 1899, p. 409, chap.
30, sec. 36, the preliminary evidence necessary to render secondary
evidence admissible may be by affidavit. Scott v. Bassett, 194 111.
602, 62 N. E. 914.
The preliminary proof of the loss of notes may be made by affi-
davit. Wade v. Wade, 12 111. 89; Palmer v. Logan, 3 Scam. 56; Dor-
mady v. State Bank of Illinois, 2 Scam. 236; Taylor v. Mclrvin, 94
111. 488.
The affidavit must show certainty. Holbrook v. Trustees, 28 111.
187; Rogers v. Miller, 4 Scam. 333; Palmer v. Logan, 3 Scam. 56.
The affidavit, however, of third parties competent to testify is not
admissible. Becker v. Quigg, 54 111. 390.
The affidavit must give the details of the search. Booth v. Cook,
20 111. 129.
It is not enough to state simply that diligent search has been made.
Rankin v. Crow, 19 111. 626.
An affidavit of a party " that he did not have the deed in his pos-
session, that he did not know where it was," complies with the law.
Nixon v. Cobleigh, 52 111. 387.
Any person having any knowledge of the facts may prove the loss^
Weis v. Tiernan, 91 111. 27.
Chap. IX.] THE LAW OF EVIDENCE. 371
As to the diligence of the search for a lost deed, see Taylor v.
Mclrvin, 94 111. 488.
The preliminary proof of loss or destruction is for the court.
Loewe v. Reismann, 8 Brad. 525.
Lost papers. — The contents of a lost instrument may be proved.
Kank. Coal Co. v. Crane B. Co., 38 111. App. 557, 99 111. App. 559, 561.
The contents of a lost note may be shown, proper foundation for
the evidence having been laid. Grimes v. Hillary, 150 111. 141; O'Neil
v. O'Neil, 123 111. 361, 363.
In order to prove the contents of a note and mortgage, the original
must be shown to be lost. Dowden v. Wilson, 71 111. 485.
As to copies of indictments which have been lost or destroyed, see
Hurd's Rev. Stat., chap. 38, sec. 413, p. 633.
When a proper foundation has been laid, a witness may state his
recollection of the contents of a lost letter. Case v. Lyman, 66
111. 229.
The contents of an affidavit may be proved by parol. Ashley v.
Johnson, 74 111. 392.
As to proof of bankruptcy discharge, see Young v. Denslinger, 2
Brad. 23.
Secondary evidence of a deed is admissible, the original being lost.
Tucker v. Shaw, 158 111. 326; Gillespie v. Gillespie, 159 111. 84.
The execution of a lost deed must be proved. Mariner v. Lamden,
5 Gilm. 113.
Any witness who knows the facts may prove the contents of a lost
paper. Rankin v. Crow, 19 111. 627.
The contents of a lost record of naturalization. Kreitz v. Behrens-
meyer, 125 111. 141, 169.
The contents of a letter may be shown if it is lost. Davis v. Ran-
som, 26 111. 100.
A copy of a lost memorandum is admissible. Ryan v. Miller, 153
111. 138.
Lost pleading. — Where a pleading has been lost, one cannot file an
alleged copy in order to use it as evidence, but the person assuming
to know the contents must take the stand so as to be subjected to
cross-examination. Harley v. Harley, 67 111. App. 138.
Lost deposition. — The contents of a lost deposition may be proved
in the same manner as those of any other lost paper. Stout v. Cook,
47 111. 530; Aulger v. Smith, 34 111. 534.
The contents of a deposition cannot be proved where it can be
retaken. Stout v. Cook, 47 111. 530; Aulger v. Smith, 34 111. 534.
372 A DIGEST OF [Pabt II.
< i
The contents of a lost deposition cannot be shown by the attorney's
minutes. Stout v. Cook, 57 111. 386.
A copy of a lost deposition may be read. Gage v. Eddy, 167 111.
102.
Papers destroyed. — There is a presumption against one who has
destroyed writings. Anderson v. Irwin, 101 111. 411; Tartar v.
Keeler, 61 111. App. 625.
One can only prove the contents of an instrument voluntarily de-
stroyed by him when he repels inference of fraud. Blake v. Fash, 44
111. 302.
Where records are destroyed by fire, an abstract of title is compe-
tent. Richley v. Farrell, 69 111. 264.
The contents of a burnt record may be proved by parol. Forsyth
v. Vehmeyer, 176 111. 359, 52 N. E. 55, affirming 75 111. App. 308.
The contents of a burnt record may be proved from the testimony
of one who has examined it and of an abstract maker familiar with
its contents. Forsyth v. Vehmeyer, 176 111. 359, 52 N. E. 55, affirm-
ing 75 111. App. 208.
The contents of lost deeds may be proved by parol. Fletcher v.
Shepperd, 174 111. 262, 51 N. E. 212.
Wills. — As to secondary evidence of the contents of a will which
has been destroyed, see G. T. M. Mfg. d T. Co. v. Gill, 111 111. 541.
In order to render a copy admissible, the loss of the original must
be shown. Anderson v. Jacobson, 66 111. 522.
The proper foundation must be laid in order that a copy of a record
be admissible. Hanson v. Armstrong, 22 111. 442. The record itself
may be read by statute.
In possession of adverse party. — Where a party refuses to produce
papers, secondary evidence is admissible. Rector v. Rector, 3 Gilm.
105; Vestor v. Poicell, 2 Gilm. 119.
Where a party will not produce papers, the adverse party may give
parol proof of the contents and the presumption will be against him.
Rector v. Rector, 3 Gilm. 105.
If a party removes documents without the State, which it is called
upon to produce, it cannot object to secondary evidence. Suburban
R. R. Co. v. Baultwill, 94 111. App. 454.
Letter-press copies are admissible where the adverse party will not
produce the originals. Berry v. Allen, 59 111. 149.
Where the opposite party will not produce books in evidence, parol
evidence of their contents is admissible. Cartier v. Troy L. Co., 138
111. 533.
Chap. IX.] THE LAW OF EVIDENCE. 373
Original public document. — The incorporation of a company may
be proved in a suit against stockholders by a copy of the license
recorded in the books of the company. Culver v. Third Nat. Bank,
64 111. 528.
Kinds of secondary evidence. — The most satisfactory kind of sec-
ondary evidence must be produced. Wilson v. South Park ComrS.,
70 111. 46.
If a contract has been destroyed, secondary evidence may be ad-
mitted, but not a copy of it taken from the report of the case. Eoyt
v. Shipherd, 70 111. 309.
The execution docket is admissible, the execution having been lost.
Ellis v. Huff, 29 111. 449; Dunlap v. Berry, 4 Scam. 327.
As to the admissibility of copies of deeds under 1 Star. & C. Annot.
Stats. [2d ed.], p. 955, sec. 36, see Scott v. Bassett, 174 111. 390, 51
N. E. 577.
Parol evidence of the contents of an instrument which has been
lost may be offered, unless it appears that copies, or other better
evidence, exists. C, C, C. & St. L. R. R. Co. v. Newlin, 74 111. App.
638.
Where a copy of a contract is offered, any witness may testify that
it is a copy. Lombard v. Johnson, 76 111. 599.
In case of lost execution a transcript from a docket is admissible.
Becker v. Quigg, 54 111. 390.
The contents of a lost record of election may be shown by oral
evidence. Maxey v. Williamson County, 72 111. 207.
Proof of custom. — The contents of a lost bond cannot be proved
by custom. Jackson v. Bry, 3 Brad. 586.
Abstract of title. — Abstracts of title may be admissible. Heinsen
v. Lamb, 117 111. 549, 551; Russell v. Mandell, 73 111. 136.
A copy of an abstract is not admissible, even though the records
have been burnt. King v. Worthington, 73 111. 161; Compton v.
Randolph, 104 111. 555.
Where the record of deeds is destroyed, an abstract of title is
admissible. Alvis v. Morrison, 63 111. 181.
In order to prove a judgment by secondary evidence, the loss or
destruction of the record must be shown. Comisky v. Breen, 7 Brad.
369 ; Thatcher v. Maack, 7 Brad. 635.
Numerous documents. — Chicago, etc., R. Co. v. Wolcott, 141 Ind.
267.
374 A DIGEST OF [Pabt II.
Collateral fact. — Where a document is merely a collateral or sub-
sequent memorial of the fact, parol evidence of such fact may be
given. Wabash & Erie Canal v. Reinhart, 22 Ind. 463.
The contents of papers collaterally in issue may be proved. Coonrad
v. Madden, 126 Ind. 197 j Carter v. Pomeroy, 30 Ind. 438.
'Objection to evidence. — Objection to secondary evidence must be
made to be available. Moore v. Hubbard, 15 Ind. App. 84.
In public office. — The mere fact that a document is in a public
office and cannot be removed does not of itself allow the introduction
of parol evidence. People v. Lambert, 5 Mich. 349.
New Jersey.
Secondary evidence is admitted if the court is reasonably assured
that better evidence is not withheld or suppressed. Clark v. Horn-
beck, 17 N. J. Eq. 430.
Taking a receipt does not preclude other proof of payment. Berry
v. Berry, 2 Harr. 440; Chambers v. Hunt, 2 Zab. 552.
In possession of adverse party. — Copies of deeds admissible on
showing that the originals were formerly in possession of the de-
fendant's attorney and notice to produce. Popino v. McAllister, 7
N. J. L. 46.
Lost instruments. — Stafford v. Stafford, 1 N. J. Eq. 525; Bent
V. Smith, 22 N. J. Eq. 560; Browning v. Flanagan, 2 Zub. 567.
Secondary evidence of contents of a lost instrument admissible.
Whether such instrument is lost and whether sufficient search has
been made for it are preliminary questions of fact for the court.
Longstreth v. Korb, 64 N. J. L. 112.
Secondary evidence not admissible where document is lost or de-
stroyed through one's own negligence or fraud. Price v. Tollman,
Coxe, 447; Broadwell v. Stiles, 8 N. J. L. 58.
Secondary evidence not admissible in favor of one who voluntarily
destroyed the instrument. Price v. Tollman, Coxe, 447; Broadwell
v. Stiles, 3 Hal. 58.
Secondary evidence admitted when the destruction was by mis-
take, though voluntary. Wyckoff v. Wyckoff, 16 N. J. Eq. 401;
Jones v. Knauss, 31 N. J. Eq. 609.
Secondary evidence of a forged instrument that is lost or without
•the control of the State is admissible. Mead v. State, 53 N. J. L.
601
Chap. IX.] THE LAW OF EVIDENCE. 375
Secondary evidence of the contents of a lost affidavit admitted to
prove perjury. Gordon v. Mate, 48 N. J. L. 611.
Evidence that instrument cannot be found by diligent search
raises presumption of loss. Clark v. Hornbeck, 17 N. J. Eq. 430.
Proof of loss — Reasonable search. — ■ Johnson v. Arnwine, 42
N. J. L. 451.
Instances where proof of loss was unsatisfactory. Wills v. Mc-
Dole, 2 South. 502; Sterling v. Potts, 2 South. 773; Fox v. Lambson,
3 Hal. 275; Smith v. Axtell, 1 N. J. Eq. 494.
Instances where proof of loss was sufficient. Kingwood v. Bethle-
hem, 1 Green, 221; Watson v. Kelty, 1 Harr. 517, 526; Insurance
Co. v. Woodruff, 26 N". J. L. 541 ; Williamson v. Johnson, 5 N. J. Eq.
537, 593, 615.
Laws of New Jersey. — The printed statute-books and pamphlet
session laws are admissible. Lawrence v. Finch, 17 N. J. Eq. 234;
Condit v. Blaclcwell, 19 N. J. Eq. 193, 22 N. J. Eq. 481; Ball v. Con-
solidated Co., 32 N. J. L. 102 ; Uhler v. Semple, 20 N. J. Eq. 288.
Laws of another State. — Laws of New York provable by a printed
copy. Hale v. Ross, Pen. 807. Contra, Bennington Iron Co. v.
Rutherford, 3 Harr. 185.
Proving records in other States. — Chase v. Caryl, 57 N. J. L. 545.
Instrument not in issue. — Where the writing is only collateral
to the question in issue, it need not be produced. New Jersey Zinc
Co. v. Lehigh Zinc Co., 59 N. J. L. 189.
Maryland.
General authorities sustaining text. — Young v. Mertens, 27 Md.
114; Bowler v. Cushwa, 27 Md. 354; Marshall v. Haney, 9 Gill, 251;
Mulliken v. Boyce, 1 Gill, 60; Dunnock v. Dunnock, 3 Md. Ch. 140; '
Morrison v. Welty, 18 Md. 169; Barnum V. Bamum, 42 Md. 251.
A witness cannot state the effect of the document, or the result
of his impression as to the contents, but must give the words or
their substance. Baltimore v. War, 77 Md. 593.
As against one who has defaced or destroyed an instrument, slight
evidence of its contents will generally be sufficient. Love v. Dilly,
64 Md. 238.
A party was allowed to bring out on cross-examination the con-
tents of a paper, of the existence of which he could not have known
in time to serve notice to produce or to account for its absence.
Hume v. Pumphrey, 4 Gill, 181.
376 A DIGEST OF [Pabt II.
Payment of money may be proved without producing a receipt
that was given therefor. Wyeth v. Walzl, 43 Md. 426.
The contents of a document may be proved by a copy, which the
adverse party has admitted to be correct in another action. Crich-
ton v. Smith, 34 Md. 42.
To contradict a witness, a printed copy of a letter written by
him, admitted by him to be correct, is admissible without account-
ing for the original, the witness admitting that the original is not
in his possession. Gillespie v. State, 92 Md. 171.
Lost or destroyed documents. — Secondary evidence of a document
is admissible only when it is lost, destroyed, or in the possession
of the adverse party. Hay ward v. Carroll, 4 H. & J. 518; Weber v.
Fickey, 52 Md. 398, 423, 515.
The minute-books of a corporation containing a copy of an agree-
ment are admissible if the original is lost. Harrison v. Morton, 83
Md. 456.
Copies of the record of a deed not required by law to be recorded
are not admissible unless the original is lost. Gittings V. Hall,
1 H. & J. 14; Hum v. Soper, 6 H. & J. 276.
The existence of the document at one time must be established.
Young v. Mackall, 4 Md. 362.
Preliminary proof of loss. — Proof that a paper was thrown away
as useless is enough to let in secondary evidence without proving
any search for it. Wright v. State, 88 Md. 436.
Diligent search must be made. See Gunther v. Bennett, 72 Md.
384.
It must be proved that the original once existed and sufficient
evidence must be introduced to raise the presumption of loss or
destruction. In case of loss, a reasonable search must have been
made. Brashears v. State, 58 Md. 563.
Instances of insufficient search. Basford v. Mills, 6 Md. 385;
Clements v. Ruckle, 9 Gill, 326; Mulliken v. Bovce, 1 Gill, 60.
An ordinary letter to one now dead may be presumed to have
been destroyed without proof of search. Jones v. Jones, 45 Md. 144.
A more diligent search is required in case of important instru-
ments not likely to be lost. Union Bank V. Gittings, 45 Md. 181;
Bartlett v. Wilbur. 53 Md. 485: Glenn v. Rogers, 3 Md. 312.
Document illegible. — If records have become illegible through
time or accident, secondary evidence is admissible. Smith v. Wil-
son, 17 Md. 460.
Chap. IX.] THE LAW OF EVIDENCE. 377
Possession of adverse party. — A copy of a letter may be intro-
duced when notice has been given to produce the original and it is
not produced. Brailsford v. Williams, 15 Md. 151.
Original in possession of adverse party and his failure to produce.
Walsh v. Gilmore, 3 H. & J. 383.
Refusal to produce after service of notice admits secondary evi-
dence. Morrison v. Whiteside, 17 Md. 452.
Pennsylvania.
Lost or destroyed in general. — Gould v. Lee, 55 Pa. 99. Records :
Bank v. Qilson, U Pa. 51; Miltimore v. Miltimore, 40 Pa. 151;
Clark v. Trindle, 52 Pa. 492 ; Appeal of McFate, 105 Pa. 323. Sealed
instruments: Edgar's Lessee v. Robinson, 4 Dall. 132; Paul v.
Durborow, 13 S. & R. 392; Schall v. Miller, 3 Whart. 250; Huzzwrd
v. Trego, 35 Pa. 9; Gorgas v. Hertz, 150 Pa. 538.
It must be proved that the lost document actually existed and was
genuine before secondary evidence of its contents is admissible.
Krise v. Neason, 6G Pa. 253.
Lost letter. Stem v. Stanton, 184 Pa. 268.
Secondary evidence of the contents of a lost note is not to be
excluded merely because the defendant produces what he claims to
be the note when its genuineness is denied by the plaintiff. Helzer
v. Helzer, 187 Pa. 243.
One who has lost or destroyed a document through fraud or neg-
ligence cannot introduce secondary evidence of its contents. Wallace
v. Harmstad, 44 Pa. 492.
Preliminary proof of loss and search. — Proof of loss held suffi-
cient. Bank v. Field, 143 Pa. 473; Brown v. Day, 78 Pa. 129.
Preliminary proof that instrument is lost is required. McCredy
V. Schuylkill Xav. Co., 3 Whart. 424; Parke v. Bird, 3 Pa. 360;
Caufman v. Congregation, 6 Binn. 59; Graff v. Railroad Co., 31 Pa.
359 ; Brown v. Day, 78 Pa. 129 ; Trust Co. v. Rosenagle, 77 Pa. 507.
A reasonably diligent search is required. Spalding v. Bank, 9 Pa.
28; Transportation Co. v. Steele. 70 Pa. 188.
A less diligent search is required in case of unimportant docu-
ments that are lost. American Ins. Co. v. Rosenagle, 77 Pa. 507.
Search for instrument held insufficient. Burr v. Kase, 168 Pa.
81 ; Fire Ins. Co. v. Mardorf, 152 Pa. 22 ; Heller v. Peters, 140 Pa.
648.
378 A DIGEST OF [Pabt II.
That an instrument once existed and is now lost may be shown
by circumstantial evidence. Bright v. Allan, 203 Pa. 386.
Preliminary proof of loss is for the court. Flinn v. McGonigle,
9 W. & S. 75; Railroad Co. v. Quick, 61 Pa. 328; Gorgas v. Hertz,
150 Pa. 538; Hemphill v. McClimans, 24 Pa. 367; Graff v. Railroad
Co., 31 Pa. 489.
Documents in possession of a third party, see Morris v. Vanderen,
i^Dall. 64; Be Baril v. Pardo, 8 Atl. 876.
In ha,nds of adverse party. — Secondary evidence of the contents
of a document in the hands of the adverse party is not admissible
without showing notice to produce. Buchanan v. Moore, 10 S. & R.
275; Garland v. Cunningham, 37 Pa. 228; Eilbert v. Finkbeiner,
68 Pa. 243; Underwriters' Assn. v. George, 97 Pa. 238.
Out of jurisdiction. — Where a document is out of the jurisdiction
in the hands of a third party, secondary evidence is admissible.
Otto v. Trump, 115 Pa. 425, 430; Ralph v. Brown, 3 W. & S. 395;
McGregor v. Montgomery, 4 Pa. 237.
Numerous documents. — Voluminous documents likely to be unin-
telligible to the jury may be summed up in a tabulated statement
and such statement admitted in evidence. Com. v. Work, 3 Pitts.
493.
Not movable. — The contents of a posted notice may be proved
by parol. Whitesell v. Crane, 8 W. & S. 369.
Court records. — Secondary evidence admitted where the document
is a part of or attached to the record of a court of another State.
Otto v. Trump, 115 Pa. 425.
Laws of other States. — Laws of a sister State proved in same
way as those of a foreign country. Ripple v. Ripple, 1 Rawle, 386.
They may be proved by a volume of its laws printed by public
authority. Thompson v. Musser, 1 Dall. 458; Kean v. Rice, 12
S. & R. 203; Mullen v. Morris, 2 Pa. 85.
An attorney acquainted with the law of a sister State is a com-
petent witness as to its unwritten law. Dougherty v. Snyder, 15
S. & R. 84.
Foreign law may be proved by any one acquainted with it, though
not a lawyer. Trust Co. v. Rosenagle, 77 Pa. 507.
Degrees in secondary evidence. — The best kind of evidence ob-
tainable is required. Stevenson v. Hoy, 43 Pa. 191.
To prove a transaction of sixty years ago, it is not necessary to
Chap. IX.] THE LAW OF EVIDENCE. 379
produce the best evidence of the fact that existed then, but only the
best that exists now. Howell v. Mellon, 189 Pa. 169.
Giving a receipt does not prevent the proving of payment by
parol. Heckert v. Haine, 6 Binn. 1G; Ramsey v. Johnson, 3 P. & W.
293.
Statute. — Secondary evidence admissible when a witness persists
in refusing to produce though served with subpoena duces tecum and
punished. Pepper & Lewis' Digest of Laws, " Evidence," sec. 7.
Aeticle 72.*
rules as to notice to produce.
Secondary evidence of the contents of the documents
referred to in Article 71 (a) may not be given unless the
party proposing to give such secondary evidence has,
if the original is in the possession or under the control of
the adverse party, given him such notice to produce it as
the Court regards as reasonably sufficient to enable it to be
procured ; 26 or has,
if the original is in the possession of a stranger to the
action, served him with a subpoena duces tecum requiring
its production; 27
if a stranger so served does not produce the document,
and has no lawful justification for refusing or omitting to
do so, his omission does not entitle the party who served him
with the subpoena to give secondary evidence of the con-
tents of the document. 28
* See Note XXIX.
26 Dwyer v. Collins, 1852, 7 Ex. at p. 648.
27 Kexcton v. Chaplin, 1850, 10 C. B. 356.
28 R. v. Llanfaethly, 1853, 2 E. & B. 940.
380 A DIGEST OF [Pabt II.
Such notice is not required in order to render secondary
evidence admissible in any of the following cases —
(1) When the document to be proved is itself a notice ;
(2) When the action is founded upon the assumption
that the document is in the possession or power of the ad-
verse party and requires its production ; 29
(3) When it appears or is proved that the adverse party
has obtained possession of the original from a person sub-
poenaed to produce it ; 30
(4) When the adverse party or his agent has the original
in court. 31
AMERICAN NOTE.
General.
Authorities. — 1 Taylor on Evidence ( Chamberlayne's 9th ed. ) ,
sec. 440 et seq.; 1 Greenleaf on Evidence (15th ed.), sec. 561.
Notice to produce. — Abbott v. Wood, 22 Me. 541; Inhabitants of
Belfast v. Inhabitants of Washington, 46 Me. 460; Webster v. Clark r
30 N. H. 245; Curtis v. Ingham, 2 Vt. 287; Murray v. Mattison, 67
Vt. 553, 32 Atl. 479; Baker v. Pike, 33 Me. 213; People v. Walker, 38
Mich. 159; Dunbar v. U. S., 156 U. S. 185; Mayor of Baltimore v.
War, 77 Md. 593, 603; Filbert v. Finkbeiner, 68 Pa. St. 243; Trelever
v. No. Pac. R. Co., 89 Wis. 598 ; Shepard v. Giddings, 22 Conn. 282 ;
Draper v. Hatfield, 124 Mass. 53; Roberts v. Spencer, 123 Mass. 397;
Bourne v. Buffington, 125 Mass. 481 ; Com. v. Sullivan, 156 Mass.
229; Com. v. Emery, 2 Gray (Mass.), 80; Bourne v. Boston, 2 Gray
29 Hoio v. Hall, 1811, 14 Ea. 274. In an action on a bond, no no-
tice to produce the bond is required. See other illustrations in 2 Ph.
Ev. 273: Taylor, s. 452.
30 Leeds v. Cook, 1803, 4 Esp. 256.
31 Formerly doubted, see 2 Ph. Ev. 278, but so held in Dwyer v.
Collins, 1852, 7 Ex. 639.
Chap. IX.] THE LAW OF EVIDENCE. 381
(Mass.), 494; Brackett v. Evans, 1 Cush. (Mass.) 79; Harris v.
Whitcomb, 4 Gray (Mass.), 433.
If the paper is in court, a verbal notice to produce is sufficient.
Overlook v. Hall, 81 Me. 348.
Suit on assumption that adverse party has document. — Dana v.
Conant, 30 Vt. 246, 257 ; Morrill v. B. & M. R. R. Co., 58 N. H. 68 ;
State v. Hayberry, 48 Me. 218; Railway Co. v. Cronin, 38 0. St. 122.
Compare People v. Swetland, 77 Mich. 53.
Unlawful refusal of stranger to produce. — Bull v. Loveland, 10
Pick. (Mass.) 14.
Document itself a notice. — Eagle Bank v. Chapin, 3 Pick. (Mass.)
180; Quinley v. Atkins, 9 Gray (Mass.), 370; Michigan, etc., Land
Co. v. Republic Township, 65 Mich. 628 ; Pensacola R. Co. v. Brayton,
34 Fla. 471; Getkin v. Walker, 59 Cal. 502; Morrow v. Com., 48 Pa.
St. 305 ; Central Bank v. Allen, 16 Me. 41.
In possession of third person. — Brandt v. Klein, 17 Johns. 335;
Lane v. Cole, 12 Barb. 680.
A subpoena duces tecum may be served on a party. Shelp v. Morri-
son, 13 Hun, 110. If a corporation, by serving the proper officer.
N. Y. Code Civ. Pro., sec. 8GS.
Adverse party has obtained document from person subpoenaed. —
Bonesteel v. Lynde, 8 How. Pr. 226, 352.
Where the document was taken with intent to destroy, no notice
need be given such party to produce the portion taken. Scott v.
Rentz, 5 Sand. 572.
Adverse party has the original in court.— McPherson v. Rath-
bone, 7 Wend. 216, 219; Brandt v. Klein, 17 Johns. 335.
Requiring production. — The courts may require parties to produce
books or writings. Hurd's Rev. Stat., chap. 51, sec. 9, p. 860.
Or papers. Field v. Zemansky, 9 Brad. 479.
As to requiring parties to produce writings, see Allison v. Perry,
130 111. 915: Trucsdale Mfg. Co. v. Hoyle, 39 111. App. 532, 538;
Rigdon v. Conley, 31 111. App. 630, 634, 635; People v. West. M.
M. I. Co., 40 111. App. 429.
Subpoena. — A witness who is unable to produce books or papers
required by a subpoena duces tecum is excused by his inability, if
after a diligent search he is unable to find them, and does not know
where they are. Lamb v. Lippincott, 115 Mich. 611.
382 A DIGEST OF [Pabt II.
New Jersey.
Notice to produce. — Secondary evidence not admissible without
showing a notice to produce. Ford v. Munson, 1 South. 93.
Notice required even though the document is in court. Watkins
v. Pintard, Coxe, 378.
Notice to defendant's attorney held sufficient. Den. v. McAllister,
2 Hal. 46.
The document must be produced in evidence if relevant, but only
during the one trial for which notice to produce was given. Ellison
V. Cruser, 40 N. J. L. 444.
Time of notice. — Notice on the morning of trial is sufficient if
the document be near at hand. Board of Justices v. Fennimore, 1
N. J. L. 242.
Subpcena duces tecum. — It is proper to issue a subpoena duces
tecum to a party to the suit. Murray v. Elston, 23 N. J. Eq. 212;
Wills v. M'Dole, 2 South. 501.
One is not obliged to produce a will in evidence, though an ad-
journment was taken to examine it. State v. Lyon, Coxe, 403, 412.
Maryland.
Notice to produce. — Mayor of Baltimore v. War, 77 Md. 593, 603.
Notice to produce a document in the hands of the adverse party
is required before one may introduce evidence of its contents. Ken-
nedy v. Foioke, 5 H. & J. 63.
Notice to produce is not required if the adverse party admits that
the document is not in existence or not in his possession. Union
Banking Co. v. Oittings, 45 Md. 181.
No notice to produce a document is necessary if it was executed
in duplicate and the other copy is at hand. Totten v. Bucy, 57 Md.
446.
Document itself a notice. — Notice to produce a document itself
a notice is not necessary. Atxoell v. Grant, 11 Md. 101.
In hands of third person. — Evidence of the contents of a power
of attorney in the hands of a third party is not admissible without
proof of loss or the issuance of a subpcena duces tecum. Rusk V.
Sowerwine, 3 H. & J. 97.
Time of notice. — Notice to produce must be given in such time
as to afford the party a reasonable time to comply. Ananias
Divers v. Fulton, 8 G. & J. 202.
Chap. IX.] THE LAW OF EVIDENCE. 383
A notice at the beginning of the trial is not in due time unless
the document is in court or near at hand. Glenn v. Rogers, 3 Md.
312; Atxcell v. Miller, 6 Md. 10.
Two days' notice held sufficient. Divers v. Fulton, 8 G. & J. 202.
Pennsylvania.
Notice to produce. — Eilbert v. Finkbeiner, 68 Pa. 243.
Party having document, absent from State. Garland V. Gunning-
ham, 37 Pa. 228.
Notice is necessary though the document is in the courtroom.
Milliken v. Barr, 7 Pa. 23.
Bringing the action is itself notice where its object is the pos-
session of the instrument in question. McClean v. Herlzog, 6 S. &
R. 154.
Parol evidence of the contents of a document in the hands of the
adverse party is inadmissible until there has been a notice to pro-
duce. Buchanan v. Moore, 10 S. & R. 275; Garland v. Cunningham,
37 Pa. 228.
When notice to produce the written evidence of a contract has
been disregarded, parol testimony is admissible. Strawbridge V.
Telegraph Co., 195 Pa. 118.
Document itself a notice. — Notice to produce a document itself
a notice is unnecessary. Morrow v. Com., 48 Pa. 305 ; Gaskell v.
Morris, 7 W. & S. 32.
Statute. — As to compelling the production of documents, and the
giving of secondary evidence, see Pepper & Lewis' Digest of Laws,
"Evidence," sees. 6-0.
384 A DIGEST OF [Pabt II.
CHAPTEK X.
PROOF OF PUBLIC DOCUMENTS.
Article 73.
proof of public documents.
When a statement made in any public document, register,
or record, judicial or otherwise, or in any pleading or depo-
sition kept therewith is in issue, or is relevant to the issue
in any proceeding, the fact that that statement is contained
in that document, may be proved in any of the ways men-
tioned in this chapter. 1
AMERICAN NOTE.
General.
A paper which is identified by a stipulation does not thus become
evidence. Hankinson v. Giles, 29 How. Pr. 478, 17 Abb. Pr. 251.
Until a document is read or its reading be waived, it does not be-
come evidence, even though proved. Clapp v. Wilson, 5 Den. 285.
See also Reynolds v. Schweinfus, 27 Ohio St. 311; Chapman v.
Seely, 8 Ohio Circ. Ct. 179.
A coroner's verdict may be admissible. Fein v. Covenant Mutual
Benefit Assn., 60 111. App. 274; Grand Lodge, etc., v. Wieting, 68 111.
App. 125; Pyle v. Pyle, 158 111. 289 (to show suicide) ; N. G. Loge v.
Jurg, 65 111. App. 313 (in another State).
The dismissal of a case may be shown by the record. Consolidated
C. Co. v. Scheffer, 135 111. 217.
The record of a judgment of a court not of record is not admissible.
Eopperl v. Nagy, 37 111. App. 27.
i See articles 36 & 90.
Chap. X.] THE LAW OF EVIDENCE. 385
Article 74.
production of document itself.
The contents of any public document whatever may be
proved by producing the document itself for inspection
from proper custody, and identifying it as being what it
professes to be.
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), Bees. 479-484,
501; 1 Wharton on Evidence, sec. 635; State v. Lynde, 77 Me. 66;
Evanston v. Ounn, 99 U. S. 660; Taylor v. Adams, 115 111. 570;
Phelps v. Hunt, 43 Conn. 194. But see Donnellan v. Hardy, 57 Ind.
393 ; Frost v. Frost, 21 S. C. 501 ; Richards' Appeal, 122 Pa. St. 547.
As to proving records of other States, see U. S. Rev. Stats., sees.
905, 906.
As to proving foreign records, see Watson v. Walker, 23 N. H.
471, 496; Spalding v. Vincent, 24 Vt. 501, 504.
A record may be proved by its mere production, if such be had,
as well as by a copy. Gray v. Davis, 27 Conn. 453.
Upon a writ of error from the judgment of a justice of the peace,
each party produced a certified copy of the record below; but the
copies did not agree. Held, that the court might send for the
original record. Allin v. Hisoock, 1 Root (Conn.), 88.
Papers ir another case in order to be admissible must be shown to
be originals or transcripts. Hughes v. Lehan, 1 Ohio Circ. Ct. 9.
A plea of discharge in bankruptcy is provable by the certificate
alone. Strader v. Lloyd, 1 Western Law Journal, 396.
A book of township records must be identified. State v. Wallahan,
Tappan, 80.
The proper evidence of a patent is the document itself, authenti-
cated by the certificate and seal of the commissioner. A single cer-
tificate that a paper is " a true copy from the records of that office
of the specifications " is not admissible. Davis v. Gray, 17 Ohio St.
330.
25
386 A DIGEST OF [Part II.
Original executions are competent evidence; exemplified copies
are received; are competent as public papers kept in the clerk's
office. Bank of U. S. v. White, Wright, 51.
A public record may be admissible, even though some pages are
missing. People v. Board, etc., 21 111. App. 271.
A book of ordinances is evidence. Lindsay v. Chicago, 115 111. 121.
A certified copy of village ordinances, in pamphlet form, is admis-
sible. C. & E. I. Ry. Co. v. Beaver, 96 111. App. 558.
An incumbrance may be shown by the record. Conway v. Case, 22
111. 129; Stow v. People, 25 111. 82.
As to proof of judgments in a county court, see Hurd's Rev. Stat.,
chap. 3, sec. 65, p. 115.
Certificates of redemption from tax sales are admissible. Kraft
v. Auw, 192 111. 184, 61 N. E. 842.
Corporate existence may be shown by proving the charter and the
exercise of the franchise. P. & P. N. Ry. Co. v. P. & F. Ry. Co., 105
111. 110.
Corporate records duly authenticated are admissible. Illinois Con-
ference v. Plagge, 177 111. 431, 53 N. E. 76, affirming 76 111. App. 468.
Original records, shown to have come from the legal custodian
properly authenticated, are admissible, as are also certified tran-
scripts, lies v. Watson, 76 Ind. 359, 360; Hall v. Bishop, 78 Ind.
370, 372; Reed v. Whitton, 78 Ind. 579, 585; Anderson v. Ackerman,
88 Ind. 481, 492; Baldwin v. Threlkeld, 8 Ind. App. 312, 321.
Must be identified. — Tyres v. Kennedy, 126 Ind. 523, 526; Kusler
v. Crofoot, 78 Ind. 579, 600 (foreign judgment).
As to authenticating statutes of other States, see Ansley v. Meikle,
81 Ind. 260, 262; Anderson v. Ackerman, 88 Ind. 481, 490 (transcript
of judgment) ; Marks v. Orth, 121 Ind. 10, 14.
Assessment lists. — Painter v. Hall, 75 Ind. 208, 213; Lefever v.
Johnson, 79 Ind. 554, 556; Crume, Dunn d Co. v. Rauh, 100 Ind. 247,
253; Burket v. Pheister, 114 Ind. 503, 504; Cincinnati, etc., R. R. Co.
v. McDougall, 108 Ind. 179, 182; Towns v. Smith, 115 Ind. 480, 483;
Standard Oil Co. v. Bretz, 98 Ind. 231, 235.
Federal land records. — Burns' Stat., sec. 1881.
New Jersey.
Making the record of an instrument admissible does not destroy
the admissibility of the original, though not recorded. Doremus v.
Smith, 4 N. J. L. 142.
Chap. X.] THE LAW OF EVIDENCE. 387
The enrolled statute of a State conclusive proof of its enactment
and contents. Cable Co. v. Attorney-General, 46 N. J. Eq. 270.
A judgment cannot be proved by parol. Lomerson v. Hoffman, 4
Zab. 674, 25 N. J. L. 625; Tice v. Beeves, 30 N. J. L. 314.
Original deeds as evidence. — G. S. 1895, "Conveyances," 31.
Maryland.
Authorities. — In the same court where a record is lodged, the
record itself is evidence; the original papers may be laid before the
court. Morrill v. Gelston, 34 Md. 413; Lerian v. Bohr, 66 Md. 95;,
Bolder v. State, 8 G. & J. 359; Preston v. Evans, 56 Md. 476.
Under statute the original papers of another suit are not ad-
missible unless they are accompanied by a certified copy of the
docket entries in the case. Miller v. Matthews, 87 Md. 464.
Though land records are not ordinarily admissible, they may be
introduced to impeach the correctness of a certified copy. Evans
V. Horan, 52 Md. 602.
The record of another court can be proved only by a transcript
and not by the original entries. Jones v. Jones, 45 Md. 144; Gold-
smith v. Kilbourn, 46 Md. 289. (But see statute.)
Bank-books, when relevant, may be themselves produced, or ex-
tracts taken from them. Winder v. Diffenderfer, 2 Bland, 166.
Pennsylvania.
Authorities. — Richards' Appeal, 122 Pa. 547.
One offering a document in evidence must offer it just as it is;
and if there is anything on it to explain, the burden is on him to
do so. Cary v. Gary, 189 Pa. 65.
Where a certified copy of a record is admissible, the original is
equally so. White v. Fitler, 2 Pa. Law J. 302; Lewis v. Bradford,
10 Watts, 67 ; Miller v. Hale, 26 Pa. 432.
A certified copy is no better evidence than the original. Boggs V.
Miles, 8 S. & R. 407.
Official papers taken from the files without authority are not
admissible unless authenticated by the officer in whose custody they
are. Devlmg v. Williamson, 9 Watts, 311; Hockenbury v. Carlisle,
1 W. & S. 282.
The original books of the county commissioners' office are ad-
missible. Miller v. Hale, 26 Pa. 432. And they may be identified
388 A DIGEST OF [Pabt 11.
by any one who knows them to be such. Cuttle v. Brockway, 24 Pa.
145.
The original records of another court are admissible when pro-
duced from proper custody. Garrigues v. Harris, 17 Pa. St. Rep. 344.
Justice's docket is admissible to prove its contents. Cope v.
Risk, 21 Pa. 59; Dean v. Connelly, 6 Pa. 239; Knapp v. Miller, 133
Pa. 275.
The docket of a justice of the peace is admissible though obtained
without his authority. Dennison v. Otis, 2 Rawle, 9.
Article 75.*
examined copies.
The contents of any public document whatever may in all
«ases be proved by an examined copy.
An examined copy is a copy proved by oral evidence to
"have been examined with the original and to correspond
therewith. The examination may be made either by one
person reading both the original and the copy, or by two
persons, one reading the original and the other the copy,
and it is not necessary (except in peerage cases 2 ) that each
should alternately read both. 3
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 91, 485,
501, 508; 1 Wharton on Evidence, sec. 94; Amer. Life Ins. Co. v.
Rosenagle, 11 Pa. St. 507; Moore v. Gaus Mfg. Co., 113 Mo. 98
(called a " sworn " copy) ; State v. Clothier, 30 N. J. L. 351 (called
a "sworn" copy) ; Lasater v. Van Hook, 11 Tex. 650; Whitehouse
* See Note XXX., also Doe v. Ross, 1840, 7 M. & W. at p. 106.
2 Slave Peerage Case, 1835, 5 C. & F. at p. 42.
3 2 Ph. Ev. 200, 231; Taylor, s. 1545; R. N. P. 98.
Chap. X.] THE LAW OF EVIDENCE. 389
v. Beckford, 9 Fost. (X. H.) 471, 480; State v. Loughlin, 66 X. H.
266 ; State v. Lynde, 77 Me. 561 ; State v. Spaulding, 60 Vt. 228.
Method of comparison. — Lynde v. </t«2d, 3 Day (Conn.), 500.
Examined copies are often called " sworn copies." Hubbell v.
Meigs, 50 N. Y. 480, 492.
A sworn copy of a lost instrument is of as high an order of proof
as the instrument itself, and cannot be varied by parol evidence.
Reed v. United States Express Co., 48 X. Y. 462.
Examined copy. — A nonjudicial record of another State may be
proved by a sworn copy. Hall v. Bishop, 78 Ind. 370, 371. See,
also, Lake Erie, etc., R. R. Co. v. Bowker, 9 Ind. App. 428, 431.
A sworn copy of a record which has been lost or destroyed is ad-
missible. Jones v. Levi, 72 Ind. 586.
New Jersey.
Authorities. — State v. Clothier, 30 X. J. L. 351 (called a "sworn"
copy).
Sworn copies of the records of a county in another State. Condit
V. Black-well, 19 N. J. Eq. 193.
Statutes of other States must be proved by exemplified copies, or
at least by sworn copies. Van Buskirk v. Mulock, 18 X. J. L. 184.
A deposition taken in another suit must be proved by a certified
or sworn copy of the original. Railroad Co. v. Stewart, 19 X. J. Eq.
343.
A sworn copy of a municipal record is admissible. Fcnnimore
v. Clothier, 30 X. J. L. 351.
Sworn copy of the records of a township meeting are better evi-
dence to prove what officers were elected than a certified copy of a
list filed with the county clerk. In re Pricket t, 20 N. J. L. 134.
Sworn copy of the town-book is the best evidence of the election
of officers. Myers v. Clark, 41 X. J. L. 486.
Printed copies of laws.— G. S. 1895, "Evidence," 22, 23, 65;
"Statutes," 38.
Maryland.
Examined copies of assessor's books are admissible. Hughes V.
Jones, 2 Md. 178.
Printed copies. — Printed books to prove statutes and resolutions.
P. G. L. 1888, art. 35, sees. 47-49.
Copy of the articles of a vessel, sworn to by the captain.
P. G. L. 1888, art. 84, sec. 8.
390 A DIGEST OF [Paet II.
Pennsylvania.
Authorities. — Life Ins. Co. v. Kosenagle, 77 Pa. 507; Krise v.
Reason, GO Pa. 253.
A copy must be proved by some one who has compared it with the
original. McGinniss v. Saicyer, 63 Pa. 259; Trust Co. v. Rosenagle,
77 Pa. 507.
A sworn copy admitted after proof of the existence and loss of
an instrument. Blackslone v. White, 41 Pa. 330.
Sworn copy of a justice's docket admissible. Welsh v. Crawford,
14 S. & R. 440; Hibbs v. Blair, 14 Pa. 413.
Official papers cannot be verified and proved by one having no
connection with the office. Hockenbury v. Carlisle, 1 W. & S. 282.
An unsworn copy of an unofficial survey not admitted. Kirk-
patrick v. Vanhorn, 32 Pa. 131.
Article 76.
general records of the realm.
Any record under the charge and superintendence of the
Master of the Rolls for the time being, may be proved by
a copy certified as a true and authentic copy by the deputy
keeper of the records or one of the assistant record keepers,
and purporting to be sealed or stamped with the seal of the
Record Office. 4
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 499 et seq.
As to authentication of copies of the public records of the Federal
government, see U. S. Rev. Stat., sees. 882-898; Ballew v. U. S., 160
U. S. 191.
Acts of Congress are admissible. Lane v. Bommehnann, 17 111. 95.
The record of a case is admissible to show that suit was brought.
Fusselman v. Worthington, 14 111. 135.
Corporation records are admissible to show the existence of an
amendment to its charter. Dows v. Naper, 91 111. 44.
Statutes of other States are admissible under Rev. Stat., chap. 51,
sec. 10. Grand Pass Shooting Club v. Crosby, 181 111. 266, 54 N. E.
913.
*1 & 2 Vict. c. 94, ss. 1, 12, 13.
Chap. X.] THE LAW OF EVIDENCE. 391
Article 77.*
exemplifications.
An exemplification is a copy of a record set out either
under the Great Seal or under the Seal of a Court.
A copy made by an officer of the Court, bound by law to
make it, is equivalent to an exemplification, though it is
sometimes called an office copy.
An exemplification is equivalent to the original document
-exemplified.
AMERICAN NOTE.
General.
Authorities. — 1 Wharton on Evidence, sees. 95, 105, 107; 1 Green-
leaf on Evidence (15th ed.), sees. 488, 501; Taylor on Evidence
(Chamberlayne's 9th ed.), p. 1179 et seq.; Traction Co. v. Board of
Works, 57 N. J. L. 316.
Copies of any records made by a public officer are sometimes
called " office copies." Elwell v. Cunningham, 74 Me. 127. Or " cer-
tified copies." Gragg v. Learned, 100 Mass. 167; Samuels v. Bar-
rowscale, 104 Mass. 207.
The term "exemplification" is also applied to foreign records.
Watson v. Walker, 23 N. H. 471; Spaulding v. Vincent, 24 Vt. 501.
As to exemplification under act of Congress, see U. S. Rev. Stats.,
sees. 905, 906.
The term "exemplification" is also applied to foreign records as
well as domestic, and these records may be judicial or nonjudicial
in character. Lincoln v. Battelle, 6 Wend. 475; Lazier v. Wcstcott,
26 N. Y. 146; Miller v. Livingston, 1 Cai. 349; Quag v. Eagle Fire
Insurance Co., Anth. N. P. 237.
A record of a court certified by the clerk of court, the county clerk,
and the presiding judge is sufficient, in the absence of specific defects
pleaded, under the act of Congress (1 Stat. 122), which provides that
* See Note XXXI.
392 A DIGEST OF [Part II.
the record of foreign courts shall be certified by the judge, chief jus-
tice or presiding magistrate, although not attested by the secretary of
state under the great seal, as Code, sec. 952 requires. Talamo v.
Ermano, 62 N. Y. Supp. 240.
Letters of administration. — Jenkins v. Robinson, 4 Wend. 436;
Westcott v. Cady, 5 Johns. Ch. 334.
New Jersey.
Authorities. — Traction Co. v. Board of Works, 57 1ST. J. L. 316.
Exemplified copy of a marriage certificate, without any proof of
the latter's genuineness, is not admissible. Rooney v. Rooney, 54
N. J. Eq. 231.
An exemplified copy of the record of a mortgage in New York
given the same faith and credit as it would have in New York.
Chase v. Caryl, 57 N. J. L. 545.
Under a statute requiring the dockets of a deceased justice to be.
deposited with the county clerk, the latter is competent to exemplify
transcripts therefrom. Woodruff v. Woodruff, 4 N. J. L. 375.
Foreign statutes may be proved by exemplified copies. Van Bus-
kirk v. Unlock, 18 N. J. L. 184.
As to manner of proving an incorporation under the laws of an-
other State sec Stone v. State, Spen. 401.
As to what is sufficient exemplification of the record of a court
of another State, see Gavii v. Snowhill, 20 X. J. L. 70.
Exemplified copy of an act of the Legislature, under the great
seal, is conclusive of the existence and contents of the act. Pang-
horn v. Young, 32 X. J. L. 20. .
Exemplification of colonial deeds.— G. S. 1895, " Convevances,"
118.
Maryland.
Example of the sufficient exemplification of the record of a court
of Martinique. Dr Sobry v. De Laistre, 2 H. & J. 191.
An exemplified copy of the record of a deed is admissible only
when the record shows that the original was duly executed. Budd
v. Brooke, 3 Gill. 198.
The exemplification of a record not authorized by law to be kept
is not admissible except as secondary evidence. Wilson v. Inloes,
Chap. X.] THE LAW OF EVIDENCE. 393
6 Gill, 121; Gittings v. Hall, 1 H. & J. 14; Hum v. Boper, 6 H. &J.
276.
A copy of a record of an instrument is not admissible when the
instrument was improperly admitted to record. Coale v. Harring-
ton, 7 H. & J. 147.
Exemplifications of debts of record in other States and nations.
P. G. L. 1888, art. 35, sec. 36.
Pennsylvania.
Authorities. — Exemplification of a will admitted. Weston v.
Stanmers, 1 Dall. 2 ; Morris v. Vanderen, 1 Dall. 64 ; Criswell V.
Alt emus, 7 Watts, 565.
Exemplification of the record of the Orphans' Court in regard to
the partition of real estate is not admissible unless it contain the
whole record. Hampton v. Speckenagle, 9 S. & R. 212; Christine V.
Whitehill, 16 S. & R. 98; Coal Co. v. Quick, 68 Pa. 189.
Exemplified copy of a mortgage is admissible without proving loss
of the original. Curry v. Raymond, 28 Pa. 144.
Exemplified copy of a lost deed admitted. Scott v. Leather, 3
Yeates, 184.
An exemplification of the record of a deed is not admissible where
the acknowledgment was insufficient. Telott v. Lewis, 102 Pa. 326.
An exemplified copy of a record was admitted even though the
record itself was made after the suit was commenced. Sioatik v
Phillips, 113 Pa. 482.
Exemplifications of court records. — Pepper & Lewis' Digest of
Laws, " Court Records," sec. 3.
Exemplification of a docket entry not admissible to prove a lis
pendens. Ingham v. Craig, 1 P. & W. 389.
A duly certified exemplification of the record of bankruptcy pro-
ceedings, schedules, etc., is admissible. Bonesteel v. Sullivan, 104
Pa. 9.
What is sufficient exemplification of a record under act if
Congress. Erb v. Scott, 14 Pa. 20; Van Storch v. Griffin, 71 Pa.
240.
When exemplifications shall be evidence. — Pepper & Lewis' Digest
of Laws, " Evidence," sees. 10-42.
394 A. DIGEST OF [Pabt II.
Article 78.*
copies equivalent to exemplifications.
A copy made by an officer of the Court, who is authorised
to make it by a rule of Court, but not required by law to
make it, is regarded as equivalent to an exemplification in
the same Cause and Court, but in other Causes or Courts it
is not admissible unless it can be proved as an examined
copy.
AMERICAN NOTE.
Authorities. — 1 Wharton on Evidence, sees. 104, 105; 1 Greenleaf
on Evidence (15th ed.), sec. 507; Traction Co. v. Board of Works, 57
N. J. L. 316.
Maryland.
Judgments. — Full exemplified copy of the record of a judgment
not required. Short copies. P. G. L. 1888, art. 35, sec. 59.
Article 79.
certified copies.
It is provided by many statutes that various certificates,
official and public documents, documents and proceedings
of corporations, and of joint stock and other companies, and
certified copies of documents, bye-laws, entries in registers
and other books, shall be receivable in evidence of certain
particulars in Courts of Justice, provided they are respec-
tively authenticated in the manner prescribed by such stat-
utes. 5
* See Note XXXI.
58 & 9 Vict. c. 113, preamble. Many such statutes are specified in
Taylor, bb. 1601 n.; 1611 n. See, too, R. N. P. 98, 99, and the Appen-
dix to this work.
Chap.X.] THE LAW OF EVIDENCE. 395
Whenever, by virtue of any such provision, any such
certificate or certified copy as aforesaid is receivable in
proof of any particular in any Court of Justice, it is admis-
sible as evidence if it purports to be authenticated in the
manner prescribed by law without proof of any stamp,
seal, or signature required for its authentication or of the
official character of the person who appears to have signed
it. 6
Whenever any book or other document is of such a pub-
lic nature as to be admissible in evidence on its mere pro-
duction from the proper custody, and no statute exists
which renders its contents provable by means of a copy,
any copy thereof or extract therefrom is admissible in
proof of its contents, 7 provided it purport to be signed and
certified as a true copy or extract by the officer to whose
custody the original is intrusted. Every such officer must
furnish such certified copy or extract to any person apply-
ing at a reasonable time for the same, upon payment of a
Glbid. s. 1. I believe the above to be the effect of the provision,
but the language is greatly condensed. Some words at the end of the
section are regarded as unmeaning by several text writers. See e. g.,
Roscoe's N. P., p. 100; 2 Ph. Ev. 241; Taylor, 7th ed. s. 7, note 1.
Mr. Taylor says that the concluding words of the section were intro-
duced into the Act while passing through the House of Commons.
He adds, they appear to have been copied from 1 & 2 Vict. c. 94, s. 13
(see art. 76), "by some honourable member who did not know dis-
tinctly what he-was about." They certainly add nothing to the sense.
7 The words " provided it be proved to be an examined copy or
extract or," occur in the Act, but are here omitted because their
effect is given in Article 75.
396 A DIGEST OF [Part II.
reasonable sum for the same, not exceeding fourpence for
every folio of ninety words. 8
AMERICAN NOTE.
General.
Authorities. — 2 Wharton on Evidence, sees. 1313, 1314; Enfield r.
Ellington, 67 Conn. 459.
Certified copies, to be admissible, must be authorized by law.
Jay v. East Livermore, 56 Me. 107; ^Vayland v. Ware, 109 Mass. 248;
People v. Lee, 112 111. 113; Frances v. Newark, 58 N. J. L. 522. And
also be properly authenticated. Keichline v. Keichline, 54 Pa. 75;
Galvin v. Palmer, 113 Cal. 46; Bixby v. Carskadden, 55 la. 533;
Kingman v. Coioles, 103 Mass. 283.
In some States such copies may be used, the custom from time
immemorial justifying their admission. Chamberlain v. Ball, 15
Gray (Mass.), 352.
As to proof of foreign records, see Butrick v. Allen, 8 Mass. 273,
5 Am. Dec. 105.
Federal statutes.— U. S. Rev. Stat., sees. 882-900, 905, 906, 908.
As to their construction, see 1 Greenleaf on Evidence (15th ed. ),
sees. 504-506.
A copy of the record of an examination in bankruptcy proceedings
lacking the certificate of the judge required by United States Re-
vised Statutes, section 905, is inadmissible in evidence. Smith v.
Brocket t, 69 Conn. 500.
First paragraph of text. — St. John v. Croel, 5 Hill, 573; Haddock
v. Kelsey, 3 Barb. 100; Devoy v. New York, 35 Barb. 264, 22 How. Pr.
226; Clute v. Ennerich, 21 Hun, 122; Redfort v. Snow, 46 Hun, 370.
Certified copies, to be admissible, must be authorized by law.
People v. Lee, 112 111. 113.
Ordinances may be proved by certified copies. Lindsay v. Chicago,
115 111. 121; T. II. d I. R. R. Co. v. Voelker, 31 111. App. 314, 318.
An ordinnnro. in the absence of charter provision, is to be proved
as at common law. C. & A. Ry. Co. v. Engle, 76 111. 317.
Copies of patents from the State are admissible. Jackson v. Ber-
ner, 48 111. 203; Hurd's Rev. Stat., chap. 51, sec. 22, p. 861.
8 14 & 15 Vict. c. 99, s. 14.
Chap. X.] THE LAW OF EVIDENCE. 397
The official character of the clerk may be proved by the certificate
of the Secretary of State. Chambers v. People, 4 Scam. 352.
In Illinois certified copies of court records may be under the
hand of the clerk, or the judge, if there be no clerk. Hurd's Rev.
Stat., chap. 51, sec. 13, p. 800.
Certified copies of municipal records and ordinances are admissible.
Hurd's Rev. Stat., chap. 51, sec. 14, p. 860. As to the construction of
this provision, see Alton v. Hartford Fire Ins. Co., 72 111. 328.
A certified copy of a charter is competent evidence. Q. W. Tel.
*Co. v. Hears, 154 111. 437.
Certified copies of corporation records are admissible in Illinois.
Hurd's Rev. Stat., chap. 51, sec. 17, p. 860.
Certified copies of the records of justices are admissible. Hurd's
Rev. Stat., chap. 51, sec. 17, p. 861.
Certified copies of wills are admissible. Neceivander v. Neceivan-
der, 151 111. 158.
A transcript of the record is admissible if certified by the deputy
clerk. Schott v. Youree, 142 111. 233.
A certificate of the Secretary of State to the effect that an instru-
ment is not recorded is admissible. Cross v. Pinckneyville Mill Co.,
17 111. 54.
The certificate of the clerk to canvass evidence that a county seat
has been changed is admissible. People v. Warfield, 20 111. 159.
Compare Prettyman v. Supervisors, 19 111. 406.
If recorded in the wrong county, a certified copy is inadmissible.
Adams v. Buhler, 131 Ind. 66.
In order to be admissible copies of public records or papers are
only admissible when the records or papers are kept according to
law. Fry v. State, 27 Ind. 348.
A certified copy of an unauthorized record is incompetent. Starnes
v. Allen, 151 Ind. 108.
As to the form of certificate, see Anderson v. Ackerman, 88 Ind. 481 ;
Bradford v. Russell, 79 Ind. 64; Gale v. Parks, 58 Ind. 117; Kess-
ling v. Truitt, 30 Ind. 306; Painter v. Hall, 75 Ind. 208; Tull v.
David, 27 Ind. 377; Vail v. Rinehart, 105 Ind. 6; Wiseman v. Lynn,
39 Ind. 250; Yeager v. Wright, 112 Ind. 230.
Mode of authentication. — Where the statute prescribes the mode
of authenticating public instruments, no other authentication will be
sufficient. Painter v. Hall, 75 Ind. 208, 214; Board, etc. v. Ham-
mond, 83 Ind. 453, 459.
398 A DIGEST OF [Pabt II.
Judgments. — Judgments of the Superior Court may be proved by
certified transcripts. Donnellan v. Hardy, 57 Ind. 393; Anderson v.
Ackerman, 88 Ind. 481, 491; Vail v. Rinehart, 105 Ind. 6, 12; Bailey
v. Martin, 119 Ind. 103, 108; Yeager v. Wright, 112 Ind. 230, 235
(justice records) .
Recorded deed. — Benefiel v. Aughe, 93 Ind. 401, 406; Mills v.
Snypes, 10 Ind. App. 19; Midland Ry. Co. v. State ex rel., 11 Ind.
App. 433; Adams v. Buhler, 131 Ind. 66.
Tax duplicate. — A copy of a tax duplicate from the office of the
county auditor is admissible. Standard Co. v. Bretz, 98 Ind. 231;
Painter v. Hall, 75 Ind. 208, 213; Midland Ry. Co. v. State, 11 Ind.
App. 433; McSweeney v. McMillen, 96 Ind. 298, 301.
Bankruptcy records. — Bradford v. Russell, 79 Ind. 64, 73.
Transcript of survey and field notes. — Bonewits v. Wygant, 75
Ind. 41, 43.
Treasurer's settlement sheets. — Board, etc. v. Benson, 83 Ind. 469,
473.
Records of Adjutant-General's office. — Board v. May, 67 Ind. 562.
Records of other States. — As to authentication of records of other
States, see Ault v. Zehering, 38 Ind. 429; Dragoo v. Graham, 17 Ind.
427; English V. Smith, 26 Ind. 445.
Certified copies. — A judgment may be proved by a certified copy.
Norris v. Mersereau, 74 Mich. 687, 42 N. W. 153.
A certified copy of part of the journal entries in a criminal case
is admissible. McLeod v. Crosby, 87 N. W. 883.
A recorded deed is admissible without preliminary proof. Lacey
v. Davis, 4 Mich. 140.
In order to be admissible without preliminary proof, a deed must
have been properly admitted to record {e. g., must have been ac-
knowledged). People v. Marion, 29 Mich. 31.
A deed of land outside the State does not prove itself. Gualt r.
Van Zile, 37 Mich. 22.
As to copies of records of deeds of other States, see Messenger v,
Peter, 8 Det. L. N. 867, 88 N. W. 209.
As to the form of certificate under the statute, see Huntoon v.
O'Brien, 79 Mich. 227, 44 N. W. 601.
New Jersey.
The terms of an order of court can be proved only by the record
or by a duly certified copy. Michener v. Lloyd, 16 N. J. Eq. 38.
Chap. X.] THE LAW OF EVIDENCE. 399
To prove the election of town officers, there must be produced a
certified copy of all the proceedings of the town meeting when the
election took place. State v. Clark, 41 N. J. L. 486.
Recorded wills.— G. S. 1895, " Orphans' Courts," 253.
When certified copy of a will made in Great Britain is admissible.
McCarthy V. McCarthy, 57 N. J. Eq. 587.
Making certified copies admissible evidence does not render the
originals inadmissible. Oram v. Young, 3 Harr. 57.
Authority of officer. — Certified copies, to be admissible, must be
authorized by law. Francis v. Newark, 58 N. J. L. 522; Traction
Co. v. Board of Works, 57 N. J. L. 313; Stokes v. Middleton, 28
N. J. L. 32.
Copies certified by an officer merely intrusted with certain records,
but not authorized to make copies, are inadmissible. Colder v.
Cake, 24 N. J. L. 516.
The clerk of the Supreme Court may certify the day on which a
judgment was entered, but not the hour. Hunt v. Swayze, 55
N. J. L. 33.
Official certificate. — A certificate from the Secretary of State is
not evidence in the absence of statute. Traction Co. v. Board of
Public Works, 57 N. J. L. 313.
Certificate of naturalization is sufficient proof of citizenship.
Chandler v. Wartman, 6 N. J. L. J. 301.
A public officer's certificate that a certain fact appears of record
is not sufficient; the record must be certified. Francis v. Newark,
58 N. J. L. 522.
Certificates of persons other than officials are not evidence. Ander-
son v. Barnes, Coxe, 203.
Certified copies of deeds. — G. S. 1895, " Conveyances," 29.
A certified copy of the record of a deed was admitted without
any notice to produce the original. Doremus v. Smith, 4 N. J. L.
142.
Certified copies of recorded deeds are evidence. Railroad Co. v.
Suydam, 2 Harr. 160.
A certified copy of the record of a deed is not admissible when
it was not recorded within ten years from its execution. Jones v.
Crowley, 57 N. J. L. 222.
Mortgages.— G. S. 1895, " Mortgages," 56, 39.
A transcript of a mortgage record of another State is admissible
if it would be in such other State. Chase v. Caryl, 57 N. J. L. 545.
400 A. DIGEST OF [Pabt II.
Assignments of judgments. — G. S. 1895, " Judgments," 19.
Justice's docket. — The transcript of a justice's docket is admissi-
ble. French v. till reeve, 18 N. J. L. 147.
The transcript of a justice's docket is not admissible to prove
facts not authorized to be stated therein. Hunt v. Boylan, 6 N. J. L.
211.
The transcript of a justice's docket may be certified by the clerk.
Woodruff v. Woodruff, 1 South. 375.
Certified copies of laws. — G. S. 1895, " Secretary of State," 8.
Copies of records of boards of health. — G. S. 1895, " Evidence,"
60-62.
Certified copies of official bonds. — G. S. 1895, "Municipal Corpo-
rations," 6.
Maryland.
Authorities. — A certified copy of the record of a deed is admis-
sible even though the record be near at hand. Preston v. Evans, 56
Md. 476.
A certified copy of a record is not admissible unless the record-
ing was required by law. Cheney v. Watlcins, 1 H. & J. 527; Con-
nelly v. Bowie, 6 H. & J. 141 ; Coale v. Harrington, 7 H. & J. 147 ;
Burgess v. Lloyd, 7 Md. 178; Miles v. Knott, 12 G. & J. 442.
A certified copy of a paper filed in the Navy Department was ad-
mitted. Maurice v. Worden, 54 Md. 233.
Certified copy of a will admitted. Raborg v. Hammond, 2 H. & G.
42.
Certified copy of an official bond part of the record of a court.
Shipley v. Fox, 69 Md. 572.
The regular entries of a foreign notary public are to be considr
ered as records, and a copy under the hand and seal of the notary
is admissible. Brydcn v. Taylor, 2 H. & J. 396.
If the law requires a certain instrument to be recorded, a cer-
tified copy of the record is prima facie evidence of all facts neces-
sary to the validity of the original. Warner v. Hardy, 6 Md. 525;
Craufurd v. State 6 H. & J. 231; McCauley v. State, 21 Md. 556.
Official certificates. — The Governor's certificate of an act within
his authority is .admissible. Hanvood v. Marshall, 9 Md. 83.
Governor's certificate. — Certificate of the Governor as to the au-
thority of commissioners. P. G. L. 1888. art. 18, sec. 6.
Chap. X.] THE LAW OF EVIDENCE. 401
Court records. — The record of another court can be proved only
by a transcript and not by the original entries. Jones v. Jones, 45
Md. 144; Goldsmith v. Kilbourti, 46 Md. 289. (But see statute.)
Certified copies of the records of courts of law and equity ;md of
the register of wills are admissible. Morrill v. Gelston, 34 Md. 413.
A conviction may be proved by a transcript of the record. Ma-
guire v. State, 47 Md. 485.
Manner of authentication. — A certificate of the clerk of a court
of a sister State that the transcript is correct is sufficient authenti-
cation. Case v. McCee, 8 Md. 9.
A judgment is sufficiently authenticated by the words " True
copy, test " followed by the signature of the clerk with his seal.
May field v. Kilgour, 31 Md. 240.
Authority of officer to certify.— A certified copy is not admissible
unless certified by the officer authorized by law to do so. Schnert-
zell v. Young, 3 H. & McH. 502.
Certified copies of recorded deeds and other instruments. — P. G. L.
1888, art. 35, sec. 38.
Lost deeds, patents, certificates, etc. — P. G. L. 1888, art. 35, sees.
51-60.
By-laws of corporations. — P. G. L. 1888, art. 23, sec. 4.
Certificates of incorporation. — P. G. L. 1888, art. 23, sec. 46.
Registration and poll-books.— P. G. L. 1888, art. 33, sec. 2 4.
Unrecorded judgments. — P. G. L. 18S8, art. 17, sec. 22.
Record of conviction. — Conviction of a crime may be proved by
the certificate of the clerk under seal of the court, without produc-
ing the record. P. G. L. 1888, art. 35, sec. 5.
Evidence to prove the execution of instruments not recorded in
other States. P. G. L. 1888, art. 35, sec. 39.
Pennsylvania.
Certified copies as evidence. — Pepper & Lewis' Digest of Laws,
" Evidence," sees. 10-42.
Certified copy not admissible unless the original would be.
Penn v. Hartman, 2 Dall. 230.
A certified copy of detached parts of a record is not admissible.
Susquehanna, etc., R. & Coal Co. V. Quick, 68 Pa. 189.
26
402 A DIGEST OF [Pabt II.
Certified copies of a map of Philadelphia on file with the Sur-
veyor-General are admissible. Com. v. Alburger, 1 Whart. 469;
Buird v, Rice, 03 Pa. 480.
Certified copies of records in the office of Secretary of State are
admissible whenever the originals would be. Northumberland Co.
v. Zimmerman, 75 Pa. 20.
A certified copy of the proceedings of organization of a corpora-
tion in another State admitted to show the corporation's existence.
Hilliard v. Enders, 196 Pa. 587.
Certified copy of the record of another State. Clark v. Depew, 25
Pa. 509.
Court records. — Certified copies of the records of foreign courts.
In re Gautier Steel Co., 2 Pa. Co. Ct. 399; Pearson's Estate, 46 Leg.
Int. 16.
The cause of action in a foreign judgment may be proved only by
a certified copy of the record. Otto v. Trump, 115 Pa. 425.
A certified copy of bankruptcy proceedings is admissible. Berg-
haus v. Alter, 5 Pa. 507.
A transcript of a judgment of a justice court filed elsewhere is
not competent evidence while the primary evidence remains in the
justice court. O'Donnel v. Seybert, 13 S. & P. 54. But see Eibbs
v. Blair, 14 Pa. 413; Magee v. Scott, 32 Pa. 539.
Land records. — Certified copies of land-office records are admissi-
ble to show title. Anderson v. Keim, 10 Watts, 251 ; Grant v.
Levan, 4 Pa. 393; Oliphant v. Ferren, 1 Watts, 57; Fox v. Lyon,
27 Pa. 9.
Certified copies of records of deeds. Carkhaff v. Anderson, 3
Binn. 4.
Authentication. — Certified copies, to be admissible, must be au-
thorized by law, and also be properly authenticated. Keichline v.
Krichline, 54 Pa. 75.
Certified copy of a record by one who is both judge and clerk of
an inferior court. Ohw v. Hinchman, 27 Pa. 479.
The certificate of a deputy is the certificate of his superior.
Grant v. Lcran. 4 Pa. 393.
Official certificates. — A certificate from the Surveyor-General is ad-
missible to prove the appointment of a deputy surveyor. Vast-
binder v. Wager, 6 Pa. 339.
An official certificate is not admissible when not authorized by
statute. Garwood v. Dennis, 4 Binn. 314.
Chap. X.] THE LAW OF EVIDENCE. 403
Deeds and mortgages. — Pepper & Lewis' Digest of Laws, " Deeds
and Mortgages,"' sec. 162.
Marriage record. — Pepper & Lewis' Digest of Laws, "Marriage,"
sec. 14.
Article 80.
documents admissible throughout the queen's
dominions.
If by any law in force for the time being any document
is admissible in evidence of any particular either in Courts
of Justice in England and Wales, or in Courts of Justice in
Ireland, without proof of the seal, or stamp, or signature
authenticating the same, or of the judicial or official char-
acter of the person appearing to have signed the same, that
document is also admissible in evidence to the same extent
and for the same purpose, without such proof as aforesaid,
in any Court or before any judge in any part of the Queen's
dominions except Scotland. 9
Article 81.
queen's printers' copies.
The contents of Acts of Parliament, not being public
Acts, may be proved by copies thereof purporting to be
printed by the Queen's printers ;
9 Consolidates 14 & 15 Vict. c. 99, ss. 9, 10, 11, 19. Sect. 9 provides
that documents admissible in England shall be admissible in Ireland:
sect. 10 is the converse of 9; sect. 11 enacts that documents admissible
in either shall be admissible in the " British Colonies; " and sect. 1»
defines the British Colonies as including India, the Channel Islands,
the Isle of Man, and "' all other possessions " of the British Crown,,
wheresoever and whatsoever. This cannot mean to include Scotland,
though the literal sense of the words would perhaps extend to it.
404 A DIGEST OF [Part II.
The journals of either House of Parliament ; and
Royal proclamations,
may be proved by copies thereof purporting to be printed
by the printers to the Crown or by the printers to either
House of Parliament. 10
Article 82.
proof of irish statutes.
The copy of the statutes of the kingdom of Ireland en-
acted by the Parliament of the same prior to the union of
the kingdoms of Great Britain and Ireland, and printed
and published by the printer duly authorised by King
George III. or any of his predecessors, is conclusive evi-
dence of the contents of such statutes. 11
Article 83.
proclamations, orders in council, etc.
The contents of any proclamation, order, or regulation
issued at any time by Her Majesty or by the Privy Council,
and of any proclamation, order, or regulation issued at any
time by or under the authority of any such department of
the Government or officer as is mentioned in the first
io S & 9 Vict. c. 113, 9. 3. Is there any difference between the
Queen's printers and the printers to the Crown?
n 41 Geo. III. c. 90, s. 9.
Chap. X.]
THE LAW OF EVIDENCE.
405
column of the note 12 hereto, may be proved in all or any of
the modes hereinafter mentioned; that is to say —
(1) By the production of a copy of the Gazette purport-
ing to contain such proclamation, order, or regulation :
12
Column 1.
Name of Department or Officer.
The Commissioners of the Treas-
ury.
The Commissioners for executing
the Office of Lord High Ad-
miral.
Secretaries of State.
Committee of Privy Council for
Trade.
The Local Government Board
(which takes the place of the
Poor Law Board, inter alios).
Column 2.
Names of Certifying Officers*
Any Commissioner, Secretary, or
Assistant Secretary of the
Treasury.
Any of the Commissioners for
executing the Office of Lord
High Admiral or either of the
Secretaries to the said Com-
missioners.
Any Secretary or under-Secre-
tary of State.
Any Member of the Committee of
Privy Council for trade or any
Secretary or Assistant Secre-
tary of the said Committee.
The President or an ex-officio
member of the Board ; or any
Secretary or Assistant Secre-
tary of the Board (34 & 35
Vict. c. 70, s. 5).
[Schedule to 31 & 32 Vict. c. 37.]
The Postmaster General.
The Board of Agriculture.
Any Secretary or Assistant Sec-
retary of the Post Office (33
& 34 Vict. c. 79, s. 21).
The President or any member of
the Board, or the Secretary of
the Board, or any person au-
thorised by the President to
act on his behalf (58 Vict. c.
9, b. 1).
406 A DIGEST OF [Paet II.
(2) By the production of a copy of such proclamation,
order, or regulation purporting to be printed by the Govern-
ment printer, or, where the question arises in a Court in
any British colony or possession, of a copy purporting to be
printed under the authority of the legislature of such Brit-
ish colony or possession :
(3) By the production, in the case of any proclamation,
order, or regulation issued by Her Majesty or by the Privy
Council, of a copy or extract purporting to be certified to
be true by the Clerk of the Privy Council or by any one of
the Lords or others of the Privy Council, and, in the case
of any proclamation, order, or regulation issued by or under
the authority of any of the said departments or officers,
by the production of a copy or extract purporting to be cer-
tified to be true by the person or persons specified in the
second column of the said note in connection with such de-
partment or officer.
Any copy or extract made under this provision may be in
print or in writing, or partly in print and partly in writing.
Xo proof is required of the handwriting or official posi-
tion of any person certifying, in pursuance of this pro-
vision, to the truth of any copy of or extract from any proc-
lamation, order or regulation. 13
Subject to any law that may be from time to time made
by the legislature of any British Colony or possession, this
provision is in force in every such colony and possession. 14
Where any enactment, whether passed before or after
June, 1882, provides that a copy of any Act of Parliament,
« 31 & 32 Vict. c. 37, s. 2. u 31 & 32 Vict. c. 37, 3. 3.
Chap. X.] THE LAW OF EVIDENCE. 407
proclamation, order, regulation, rule, warrant, circular,
list, gazette, or document shall be conclusive evidence, or be
evidence, or have any other effect when purporting to be
printed by the Government printer, or the Queen's printer,
or a printer authorised by Her Majesty, or otherwise under
Her Majesty's authority, whatever may be the precise ex-
pression used, such copy shall also be conclusive evidence,
or evidence, or have the said effect, as the case may be, if
it purports to be printed under the superintendence or au-
thority of Her Majesty's Stationery Office. 15
Article 84.
foreign and colonial acts of state, judgments, etc.
All proclamations, treaties, and other acts of state of any
foreign state, or of any British colony, and all judgments,
decrees, orders, and other judicial proceedings of any
Court of Justice in any foreign state or in any British col-
ony, and all affidavits, pleadings, and other legal docu-
ments filed or deposited in any such Court, may be proved
either by examined copies or by copies authenticated as
hereinafter mentioned; that is to say —
If the document sought to be proved be a proclamation,
treaty, or other act of state, the authenticated copy to be
admissible in evidence must purport to be sealed with the
seal of the foreign state or British possession to which the
original document belongs ;
IB 45 Vict. c. 9, s. 2, Documentary Evidence Act, 1882. Sect. 4 ex-
tends the Act of 1868 to Ireland.
408 A DIGEST OF [Paet II.
And if the document sought to be proved be a judgment,
decree, order, or other judicial proceeding of any foreign
Court, in any British possession, or an affidavit, pleading,
or other legal document filed or deposited in any such
Court, the authenticated copy to be admissible in evidence
must purport either to be sealed with the seal of the foreign
or other Court to which the original document belongs, or,
in the event of such Court having no seal, to be signed by
the judge, or, if there be more than one judge, by any one
of the judges of the said Court, and such judge must attach
to his signature a statement in writing on the said copy that
the court whereof he is judge has no seal ;
If any of the aforesaid authenticated copies purports to
be sealed or signed as hereinbefore mentioned, it is admis-
sible in evidence in every case in which the original docu-
ment could have been received in evidence, without any
proof of the seal where a seal is necessary, or of the signa-
ture, or of the truth of the statement attached thereto,
where such signature and statement are necessary, or of
the judicial character of the person appearing to have
made such signature and statement. 16
Colonial laws assented to by the governors of colonies,
and bills reserved by the governors of such colonies for the
signification of Her Majesty's pleasure, and the fact (as the
case may be) that such law has been duly and properly
passed and assented to, or that such bill has been duly and
properly passed and presented to the governor, may be
proved (prima facie) by a copy certified by the clerk or
10 14 & 15 Vict. c. 99, 8. 7.
Chap. X.] THE LAW OF EVIDENCE. 409
other proper officer of the legislative body of the colony to
be a true copy of any such law or bill. Any proclamation
purporting to be published by authority of the governor in
any newspaper in the colony to which such law or bill re-
lates, and signifying Her Majesty's disallowance of any
such colonial law, or Her Majesty's assent to any such re-
served bill, is prima facie proof of such disallowance or
assent. 17
Article 84a.
answers of secretary of state as to foreign
jurisdiction.
The answers of a Secretary of State to questions in a
document under the seal of a Court in Her Majesty's do-
minions or held under the authority of Her Majesty,
framed so as to raise any question which has arisen in any
proceedings, civil or criminal, in such Court, as to the ex-
istence, or extent, of any jurisdiction of Her Majesty in
a foreign country, are conclusive evidence of the matters
therein contained; and the decision of the Secretary of
State, are for the purpose of the proceedings, final. 18
17 28 & 29 Vict. c. 63, s. 6. " Colony " in this paragraph means
" all Her Majesty's possessions abroad " having a legislature, " ex-
cept the Channel Islands, the Isle of Man, and India." " Colony " in
the rest of the article includes those places.
is 53 & 54 Vict. c. 37, 8. 4.
410 A DIGEST OF [Paet II.
CHAPTEK XI.
PRESUMPTIONS AS TO DOCUMENTS.
Article 85.
presumption as to date of a document.
When any document bearing a date has been proved, it is
presumed to have been made on the day on which it bears
date, and if more documents than one bear date on the same
day, they are presumed to have been executed in the order
necessary to effect the object for which they were executed,
but independent proof of the correctness of the date will
bo required if the circumstances are such that collusion as
to the date might be practised, and would, if practised, in-
jure any person, or defeat the objects of any law. 1
Illustrations.
(a) An instrument admitting a debt, and dated before the act of
bankruptcy, is produced by a bankrupt's assignees, to prove the peti-
tioning creditor's debt. Further evidence of the date of the transac-
tion is required in order to guard against collusion between the as-
signees and the bankrupt, to the prejudice of creditors whose claims
date from the interval between the act of bankruptcy and the adjudi-
cation^
( b ) In a petition for damages on the ground of adultery letters are
produced between the husband and wife, dated before the alleged
i 1 Ph. Ev. 4S2-3; Taylor, s. 169; Best, s. 402.
2 A ndcrson v. Weston, 1840, 6 Bing. N. C. at p. 301 ; Sinclair r.
Baggallay, 1838, 4 M. & W. 312.
Chap. XI.] THE LAW OF EVIDENCE. 411
adultery, and showing that they were then on affectionate terms.
Further evidence of the date is required to prevent collusion, to the
prejudice of the person petitioned against.3
AMERICAN NOTE.
General.
Authorities.— 2 Wharton on Evidence, sees. 977, 988, 1312; 8 Am.
& Eng. Encyclopaedia of Law (2d ed. ), p. 729.
First clause of text. Pullen v. Hutchinson, 25 Me. 249; Cutts
v. York Mfg. Co., 18 Me. 190; Siceetser v. Lowell, 33 Me. 446; Hill
v. McNichol, 80 Me. 209; Brooks v. Chaplin, 3 Vt. 282, 23 Am.
Dee. 209; Smith v. Porter, 10 "Gray (Mass.), 66, 68; Cranson v. Goss,
107 Mass. 439; Pringle v. Pringle, 59 Pa. 281. See Scobey v. Walker,
114 Ind. 254. Such presumption is rebuttable. Parke v. Neely, 90
Pa. 52; Knisely v. Sampson, 100 111. 573; Dudley v. Cadwell, 19
Conn. 218; New Haven County Bank v. Mitchell, 15 Conn. 206.
Order of execution. — Loomis v. Pingree, 43 Me. 299. Compare
Hagerty v. White, 69 Wis. 317.
It presents a question for the jury. Oilman v. Moody, 43 N. H.
239.
If an attachment of lands and a deed of the same by the debtor
are made on the same day, and the attachment appears on the
town records to have been made six hours before the deed was
lodged for record, it will be presumed, in the absence of all evi-
dence to the contrary, that the deed was delivered after the attach-
ment. Bissell v. Nooney, 33 Conn. 417.
In ejectment against a mortgagor, by one claiming under a deed
with full covenants of title from the holder of a second mortgage,
the plaintiff introduced, in proof of his grantor's title, a quitclaim
deed to him from the holder of the first mortgage, executed on the
same day with the deed to himself, and to which his own signature
was affixed as one of the witnesses. Both deeds were also acknowl-
edged before and witnessed by the same magistrate. Held, that it
was unnecessary to introduce extraneous evidence to show that the
quitclaim deed was executed and delivered before the other, as it
was reasonable to suppose that such was the fact, and the trans-
action ought to be so construed as to carry out the obvious intent
of the parties. - Dudley v. Cadwell, 19 Conn. 225.
3 Houlston v. Smith, 1825, 2 C. & P. at p. 24.
412 A DIGEST OF [Pabt II.
Date presumed correct. — Beck v. Cole, 4 Sand. 79 ; Livingston v.
Amoux, 56 X. Y. 507, 519; Robinson v. Wheeler, 25 N. Y. 252; Cos-
tigan v. Gould, 5 Den. 290; Harris v. Norton, 16 Barb. 264. Compare
Remington Co. v. 0' 'Dougherty, 81 N. Y. 474.
A deed is presumed to have been delivered at its date. L. E. &
W. R. R. Co. v. Whittham, 155 111. 514; Miller v. Meers, 155 111. 284;
Abrams v. Pomeroy, 13 111. 133.
Such presumption is rebuttable. Kinsely v. Sampson, 100 111. 573;
Abrams v. Pomeroy, 13 111. 133.
Parol evidence is admissible to show that an execution was issued
before judgment was entered. Baker v. Barber, 16 111. App. 621,
623; Humphreys, etc. v. Stvain, 21 111. App. 232.
Priority as to various writings may be established by parol evi-
dence. Schaeppi v. Glade, 195 111. 62, 62 N. E. 847.
A blank indorsement is presumed to have been made at the date of
the note. Cecil v. Mix, 6 Ind. 478; Bradley, Holton & Co. v.
Whicker, 23 Ind. App. 380.
A note and guaranty, executed at the same time, are presumed to
be upon the same consideration. Bondurant v. Bladen, 19 Ind. 160.
Deeds. — Deeds come within the rule. Henthorn v. Doe, 1 Blackf.
157.
New Jersey.
Authorities. — A deed is presumed to have been delivered on the
day of its date. Huber v. Diebold, 25 N. J. Eq. 171. See Halsey v.
Ball, 36 N. J. Eq. 161.
The date of the deed is prima facie evidence of the time title-
passed. Ellsworth v. Central R. Co., 34 N. J. L. 94.
A post-dated check is conclusively presumed to have been issued
on the date written. Taylor v. Sip, 30 N. J. L. 284.
Maryland.
Sustaining text. — Williams v. Wood, 16 Md. 220.
Pennsylvania.
First clause of text. Pringle v. Pringle, 59 Pa. 281.
Such presumption is rebuttable. Parke v. Neely, 90 Pa. 52.
Chap. XI.] THE LAW OF EVIDENCE. 41J
Article 86.
presumption as to stamp of a document.
When any document is not produced after due notice to
produce, and after being called for, it is presumed to have
been duly stamped, 4 unless it be shown to have remained
unstamped for some time after its execution. 5
Article 87.
presumption as to sealing and delivery of deeds.
When any document purporting to be and stamped as a
deed, appears or is proved to be or to have been signed and
duly attested, it is presumed to have been sealed and de-
livered, although no impression of a seal appears thereon."
AMERICAN NOTE.
General.
Authorities. — 2 Wharton on Evidence, see. 1314; Ward v. Lewis,
4 Pick. (Mass.) 518, 520; Mill Dam Foundry v. Hovey, 21 Pick.
(Mass.) 417, 428; Bradford v. Randall, 5 Pick. (Mass.) 490; Brolley
v. Lapham, 13 Gray (Mass.), 294; Chilton v. People, 00 111. 501;
State v. Humbcrd, 51 Md. 327; State v. Thompson, 49 Mo. 1S8;
Cadell v. Allen, 99 N. C. 542.
Modifying rule of text, Boothbay v. Giles, 08 Me. 100.
4 Closmadeuc v. Carrel, 1850, 18 C. B. 30. In this case the growth
of the rule is traced, and other cases are referred to, in the judgment
of Cresswell, J.
5 Marine Investment Company v. Haviside, 1872, L. P. 5 H. L. 624.
6 Hall v. Bainbridge, 1848, 12 Q. B. 699, at p. 710. Re Sandilands,
1871, L. R. 6 C. P. 411.
414 A DIGEST OF [Part n.
Any irregularity in this regard may be corrected in an equitable
proceeding. Harding v. Jewell, 73 Me. 426. See also State v. Peck,
53 Me. 284, 286; Barnett v. Abbott, 53 Vt. 120; Probate Ct. v. May,
52 Vt. 182; Hankleman v. Peterson, 154 HI. 419.
A deed, regular upon its face, and found in the hands of the
grantee, is presumed to have been delivered. Butrick v. Tilton, 141
Mass. 93; Harshburger v. Carroll, 163 111. 636. Compare Johnson v.
Seidel, 150 Pa. 397; Stevens v. Castel, 63 Mich. 111.
A deed regular upon its face, and found in the hands of the
grantee, is presumed to have been delivered. Harshburger v. Carroll,
163 111. 636.
Any irregularity in this regard may be corrected in an equitable
proceeding. Henkleman v. Peterson, 154 111. 419.
New Jersey.
The fact that a bond is in the hands of the obligee is prima facie
evidence of delivery. Farlee v. Farlee, 1 Zab. 279; Hill v. Beach,
12 N. J. Eq. 31; Smith v. Moore, 4 N. J. Eq. 485.
Possession of a deed by the grantee is prima facie evidence of de-
livery. Black v. Shreve, 13 N". J. Eq. 455; Benson v. Woolvcrton,
15 N. J. Eq. 158; Terhune v. Oldis, 44 X. J. Eq. 140; Vreeland v.
Vreeland, 48 N. J. Eq. 56, 49 N. J. Eq. 322.
The presumption that a scroll under the signature was intended
as a seal and that the instrument was delivered arises from the
use of the words " Witness my hand and seal/' Force v. Craig,
2 Hal. 272; Corlies v. Van Note, 16 N. J. L. 324.
Presumption is that a grantee accepts a deed beneficial to him.
Vreeland v. Vreeland, 48 N. J. Eq. 56, 49 N. J. Eq. 322.
Maryland.
Authorities. — State v. Humberd, 54 Md. 327.
Delivery of a bill or note is presumed from possession. Keedy v.
Moats, 72 Md. 325.
Pennsylvania.
The presumption that a deed was delivered arises from proof of its
signing, attestation, and acknowledgment. Kern v. Howell, 180
Pa. 315. See Johnson v. Seidel, 150 Pa. 397.
Chap. XI.] THE LAW OF EVIDENCE. f 415
The presumption of delivery of a deed, which arises from proof
of its signing, acknowledgment, and recording, cannot be overcome
by proving declarations of the grantor that it was not delivered.
Ingles v. Ingles, 150 Pa. 397.
The jury may infer delivery of a deed from the fact of signing
and the sealing thereof if a seal appears, even though the deed con-
tains no recital as to sealing. Long v. Ramsay, 1 S. & R. 72; Mil-
ler v. Binder, 28 Pa. 489.
Effect of a recital in the instrument that it is sealed. Miller v.
Binder, 28 Pa. 489.
No deed complete without a seal. Hacker's Appeal, 121 Pa. 192;
Lorah v. Nissley, 15G Pa. 329; Taylor v. Glaser, 2 S. & R. 502.
Article 88.
presumption as to documents thirty tears old.
Where any document purporting or proved to be thirty
years old is produced from any custody which the judge in
the particular case considers proper, it is presumed that
the signature and every other part of such document which
purports to be in the handwriting of any particular person
is in that person's handwriting, and, in the case of a docu-
ment executed or attested, that it was duly executed and
attested, by the persons by whom it purports to be executed
and attested ; and the attestation or execution need not be
proved, even if the attesting witness is alive and in court.
Documents are said to be in proper custody if they are in
the place in which, and under the care of the person with
whom, they would naturally be ; but no custody is improper
if it is proved to have had a legitimate origin, or if the
circumstances of the particular case are such as to render
such an origin probable. 7
7 2 Ph. Ev. 245-8 ; Starkie, 521-6 ; Taylor, s. 87 and ss. 658-667 ;
Best, s. 220.
416 A DIGEST OF [Part II.
AMERICAN NOTE.
General.
Authorities. — 1 Wharton on Evidence, sees. 194-199, 703, 732; 1
Greenleaf on Evidence (15th ed.), sees. 21, 142, 143, 144, 570; 2
Am. & Eng. Encyclopaedia of Law (2d ed.), p. 324 et seq.; Crane v.
Marshall, 16 Me. 27, 33 Am. Dec. 631; Goodwin v. Jack, 62 Me.
414; Clark v. Wood, 34 N. H. 447; Laiorence v. Tennant, 64 N. H.
532, 15 Atl. 543; Applegate v. Lexington, etc., Mining Co., 117 U.
S. 255 ; Bell v. Brewster, 44 0. St. 690 ; Fowler v. Scott, 64 Wis. 509 ;
Geer v. Lumber Co., 134 Mo. 85; Scharff v. Keener, 64 Pa. 376;
Stockbridge v. West Stockbridge, 14 Mass. 257; Floyd v. Teioksbury,
120 Mas?. 362; Rust v. Boston Mill, 6 Pick. (Mass.) 158; Monumoi
Great Beach v. Rogers, 1 Mass. 159; Pitt v. Temple, 2 Mass. 538;
King v. Little, 1 Gush. (Mass.) 436; Boston v. Weymouth, 4 Cush.
(Mass.) 538; Chcnery v. IVaZMawi, 8 Cush. (Mass.) 327; Boston v.
Richardson, 13 Allen (Mass.), 146; Palmer v. Stevens, 11 Cush.
(Mass.) 147; Tolman v. Emerson, 4 Pick. (Mass.) 160; Boston v.
Richardson, 105 Mass. 351; Whitman v. /Sffrcwo, 166 Mass. 451, 460;
Pettengill v. Boynton, 139 Mass. 244, 29 N. E. 655; Green v. Zn7ia&-
itanfs of Chelsea, 24 Pick. (Mass.) 71; Whitman v. Eeneberry, 73
111. 109.
A document (r. jr., "land plans" of a railroad) produced from its
proper custody where it lias been kept more than thirty years is
admitted without other proof of its authenticity, i. e., that it was
what it purported to be. New Haven v. N. Y., N. E. & E. R. R.
Co., 72 Conn. 232.
Deeds. — -Deeds come within the rule. Thruston v. Masterson, 9
Dana (Ky.), 228: Cook v. Totton, 6 Dana (Ky.), 108; Eenthom v.
"'"'. 1 Blackf. (Ind.) 157; Morris v. Callanan, 105 Mass. 129.
Powers of attorney. — And powers of attorney. Winn v. Patter-
son, 9 Pet. (U. S.) 663.
Bonds.— And bonds. Walton v. Coulson, 1 McLean (U. S.), 120;
Coulson v. Walton, 9 Pet. (U. S.) 62; Eoddy v. Earryman, 3 Har.
A M. (Md.) 581; Bennett v. Runyon, 4 Dana (Ky.), 422.
Records. — And records. Lt'f Me v. Downing, 37 N. H. 355 ; Goodwin
v. ./f/r,V. 62 Me. 414.
Licenses. — ■ And licenses. Boston v. Richardson, 105 Mass. 351.
Chap. XI.] THE LAW OF EVIDENCE. 417
Military pay-rolls. — And pay-rolls. Bell v. Brewster, 44 0. St.
690.
Surveys, field-books, and maps. — And surveys, field-books, and
maps. Aldrich v. Griffith, 66 Vt. 390; Hart, v. Gage, 6 Vt. 170; Boa-
ton Water Power Co. v. Hanlan, 132 Mass. 483; Holt v. Maverick,
5 Tex. Civ. App. 650.
Receipts and letters. — And letters and receipts. McReynolds v.
Langenberger, 57 Pa. St. 13.
Computation of age. — The time is computed to the day when the
instrument is admitted in evidence, not to that when the suit is in-
stituted. Johnson v. Shaw, 41 Tex. 428 ; Johnson v. Timmons, 50
Tex. 521; Bass v. Sevier, 58 Tex. 567; Gardner v. Granniss, 57 Ga.
555.
In some States the age of a will is reckoned from the death of the
testator. Shaller v. Brand, 6 Binn. (Pa.) 439, 6 Am. Dec. 482.
Possession under deed. — In case of deeds of land in order that the
presumption arise as stated in the text, some courts hold that the
grantee's possession of the land must be shown. Waldron v. Tuttle,
4 N. H. 371; Bank of Middlebury v. Rutland, 33 Vt. 414; Horner
v. Cilley, 14 N. H. 85 ; Clark v. Wood, 34 N. H. 447 ; Crane v. Mar-
shall, 16 Me. 29, 33 Am. Dec. 631.
The prevailing will is, however, to the contrary. 2 Am. & Eng.
Encyclopaedia of Law (2d ed.), p. 329, and cases cited. And it is
generally held that the instrument may be shown to be genuine by
other corroborative evidence. Long v. McDow, 87 Mo. 197; Whit-
man v. Heneberry, 73 111. 109; Nowlin v. Burwell, 75 Va. 551 ; Walker
V. Walker, 67 Pa. 185; Boston v. Richardson, 105 Mass. 351.
Custody. — Whitman v. Shaw, 166 Mass. 460 (quoting this
article) .
Secondary evidence. — The contents of a lost ancient evidence may
be proved by a copy. Winn v. Patterson, 9 Pet. (U. S.) 667. Or
oral evidence. McReynolds v. Langenberger, 57 Pa. St. 33.
The execution of the original must, however, be proved by circum-
stances, such as possession or marks of age on the paper. Schunior
v. Russell, 83 Tex. 95.
Wills. — Wills come within the rule. Jackson v. Luquere, 5 Cow.
221; Fetherly v. Waggoner, 11 Wend. 599; Storing v. Boiven, 6 Barb.
109.
Leases. — And so do leases. Hetclett v. Cock, 7 Wend. 371.
27
418 A DIGEST OF [Pabt II.
Alterations. — The one claiming under the ancient instrument
should explain material alterations. Herrick v. Malin, 22 Wend. 388.
The presumption of genuineness arising from the age of a docu-
ment is rebutted by proof of alterations in it. Ridgely v. Johnson,
11 Barb. 640.
New Jersey.
Authority. — Havens v. Land Co., 47 N. J. Eq. 365.
It must be shown that possession accompanied the deed. Osborne
v. Tunis, 25 N. J. L. 633; Havens v. Land Co., 47 N. J. Eq. 365.
The recital in a deed of 1823, more than sixty years old, of the
existence of an earlier deed of 1772, is admissible. Boeder v. Jen-
nings, 40 Fed. 199.
Ancient deeds as evidence. — G. S. 1895, "Conveyances," 3.
Maryland.
Authorities. — Carroll v. Norwood, 1 H. & J. 167.
Signatures to documents thirty years old are presumed to be
genuine. Allender v. Vestry of Trinity Church, 3 Gill, 166.
A will made 144 years before is presumed to have been duly exe-
cuted. Hall v. Gittings, 2 H. & J. 112.
Receipts thirty years old. — Allender v. Church, 3 Gill, 166.
Bonds. — Bonds come within the rule. Hoddy v. Harryman, 3
Har. & M. 581.
Pennsylvania.
Authorities. — Zeigler v. Houtz, 1 W. & S. 533; Lou v. Mumma,
43 Pa. 267; Lewis v. Lewis, 4 W. & S. 378; Union Canal Co. v.
Loyd, 4 W. & S. 393; Scharff v. Keener, 64 Pa. 376.
Documents purporting to be ancient should be carefully scruti-
nized as to genuineness and age. Wilson v. Rulofson, 201 Pa. 29.
A written instrument, thirty years old and in proper custody,
needs no further proof, even though the subscribing witnesses be
living. McReynolds v. Longenberger, 57 Pa. 13.
An ancient receipt admitted. Urket v. Coryell, 5 W. & S. 60.
A map sixty years old in proper custody is admissible as an
ancient document to prove boundary. Smucker v. Railroad Co., 188
Pa. 40.
A draft of a survey over 100 years old, made by a deputy sur-
vivor and in his handwriting, is admissible to prove boundary.
Mining Co. v. Auten. 188 Pa. 568.
Chap. XI.] THE LAW OF EVIDENCE. 419
Treasurer's tax receipts. McReynolds v. Longenberger, 57 Pa. 13.
Custody. — Rogers v. Coal & Iron Co., 31 Leg. Int. 325.
Possession under deed. — If proof of possession cannot be made,
the genuineness of an ancient deed may be otherwise established.
Walker v. Walker, 67 Pa. 185; Arnold v. Gorr, 1 Rawle, 223; Mc-
Gennis v. Allison, 10 S. & R. 197.
Proof of possession accompanying the deed ought to be made.
Healy v. Moul, 5 S. & R. 181; Walker v. Walker, 67 Pa. 185. See
McGennis v. Allison, 10 S. & R. 197.
A deed thirty years old, accompanied by possession, proves itself.
Boivser v. Cravener, 56 Pa. 132; Zeigler v. Houtz, 1 W. & S. 533.
An ancient will admissible without proof of execution, after proof
of thirty years' possession. Shaller v. Brand, 6 Binn. 435.
•
Article 89.
presumption as to alterations.
~No person producing any document which upon its face
appears to have been altered in a material part can claim
under it the enforcement of any right created by it, unless
the alteration was made before the completion of the docu-
ment or with the consent of the party to be charged under it
or his representative in interest.
This rule extends to cases in which the alteration was
made by a stranger, whilst the document was in the custody
of the person producing it, but without his knowledge or
leave. 8
Alterations and interlineations appearing on the face of
a deed are, in the absence of all evidence relating to them,
spigot's Case, 1604, 11 Coke's Rep. 47; Davidson v. Cooper, 1843,
11 M. & W. 778; 1844, 13 M. & W. 343; Aldous v. Cornwell, 1868,
L. R. 3 Q. B. 573. This qualifies one of the resolutions in Pigot's
Case. The judgment reviews a great number of authorities on the
subject.
420 A DIGEST OF [Pabt II.
presumed to have been made before the deed was com-
pleted. 9
Alterations and interlineations appearing on the face of
a will are, in the absence of all evidence relating to them,
presumed to have been made after the execution of the
will. 10
There is no presumption as to the time when alterations
and interlineations, appearing on the face of writings not
under seal, were made 11 except that it is presumed that they
were so made that the making Avould not constitute an
offence. 12
An alteration is said to be material when, if it had been
made with the consent of the party charged, it would have
affected his interest or varied his obligations in any way
whatever.
An alteration which in no way affects the rights of the
parties or the legal effect of the instrument, is immaterial. 13
AMERICAN NOTE.
General.
Authorities. — 2 Am. & Eng. Encyclopaedia of Law (2d ed.), p.
181 ct scq,; 1 Greenleaf on Evidence (15th ed.), sec. 564 et seq.
First paragraph of text. Angle v. Life Ins. Co., 92 U. S. 330;
Russell v. Russell, 36 Minn. 376; Hunt v. Gray, 35 N. J. L. 227;
Craighead v. McLoney, 99 Pa. 211; Charlton v. Reed, 61 la. 166;
» Doe v. Catomore, 1851, 16 Q. B. 745.
10 Simmons v. Rudall, 1880, 1 Sim. (N. S.) 136.
ii Knight v. Clements, 1838, 8 A. & E. 215.
12 B. v. Gordon, 1855, Dearsley & P. 592.
13 This appears to be the result of many cases referred to in Tay-
lor, ss. 1822, 1823; see also the judgments in Davidson v. Cooper and
Aldous v. Cornwall, referred to above.
Chap. XI.] THE LAW OF EVIDENCE. 421
Starr v. Lyon, 5 Conn. 540; Coit v. Starkweather, 8 Conn. 293;
Osgood v. Stevenson, 143 Mass. 399; Warring v. FFilZtoms, 8 Pick.
(Mass.) 322; Wheelock v. Freeman, 13 Pick. (Mass.) 165; Davis v.
Jenney, 1 Mete. (Mass.) 221; Boston v. Benson, 12 Cush. (Mass.)
61; Agawam Bank v. Sears, 4 Gray (Mass.), 95; Doane v. Eldridge,
16 Gray (Mass.), 255; Fay v. gmttA, 1 Allen (Mass.), 477; Stoddard
v. Penniman, 108 Mass. 366; Draper v. Wood, 112 Mass. 315; Stod-
dard v. Penniman, 113 Mass. 386; Cape Ann ¥af. Banfc v. Burns, 129
Mass. 596.
Some authorities hold that all alterations are presumed to have
been made after execution. Burnham v. Ayer, 35 N. H. 351.
Others, that there is no presumption as to when alterations are
made, but that the whole question is for the jury. Boothby v.
Stanley, 34 Me. 515, 516: Smith v. U. S., 2 Wall. 219, 232; Citizens'
Nat. Bank v. Williams, 174 Pa. 66; Wilson v. Eotchkiss' Est., 81
Mich. 172; Hodnett v. Pace, 84 Va. 873; Sisson v. Pearson, 44 111.
App. 81; Wilde v. Armsby, 6 Cush. (Mass.) 314, 318; Simpson v.
Davis, 119 Mass. 269, 270, 20 Am. Rep. 324.
In this country the rule does not extend to alterations made
by a stranger without the consent of the person having custody.
Nichols v. Johnson, 10 Conn. 192, 196; Hayden v. Goodnow, 39
Conn. 164; Bailey v. Taylor, 11 Conn. 541; Mix v. Royal Ins. Co., 169
Pa. 639; Sewing Machine Co. v. Dakin, 86 Mich. 581: Orlando v.
Gooding, 34 Fla. 244; Drum v. Drum, 133 Mass. 566; State v. Mo-
Gonigle, 101 Mo. 353.
Immaterial alterations. — Burnham v. Ayer, 35 N. H. 351; Robert-
son v. Hay, 91 Pa. 242; Pruden v. Nester, 103 Mich. 540: i?!/an v.
Ftrsf A T a«. Bank, 148 111. 349; Mersman v. TFeraes, 112 U. S. 139: Ful-
ler v. (Jreen, 64 Wis. 159; Kingston Bank v. Bosserman, 52 Mo. App.
269 (contra); Church v. FotoZe, 142 Mass. 12; Brown v. Pinkham,
18 Pick. (Mass.) 172: "Pose v. DoZan, 108 Mass. 155, 11 Am. Rep.
333; Hutch v. Hatch, 9 Mass. 307: Smith v. Crooker, 5 Mass. 538;
Com. v. Emigrant Sav. Bank, 98 Mass.. 12: /7tm* v. Adawis, 6 Mass.
519; Ames v. Colburn, 11 Gray (Mass.), 390.
Any alteration in a deed, to render it void, must be a material
one; that is, one which causes the deed to speak a language differ-
ent in legal effect from that which it spoke originally. Murray v.
Klinzing, 64 Conn. 85.
Alteration before delivery. — An alteration to vitiate must be made
after execution and delivery. Banning v. Vrooman, 12 N. Y. St. R.
393.
422 A DIGEST OF [Pabt II.
Alteration by stranger. — Disapproving rule of the text. Van
Brant v. Eoff, 35 Barb. 501 ; Dins more v. Duncan, 57 N. Y. 573, 15
Am. Rep. 534; Rees v. Overbaugh, 6 Cow. 746; Solon v. Williams-
burgh Sav. Bank, 114 N. Y. 122.
An agent acting without authority is a stranger. Rees v. Over-
baugh, 6 Cow. 746.
Nonapparent alterations. — If no alteration appears on the face,
the burden of showing it is upon the one claiming it. Farmers' L. &
T. Co. v. Siefke, 144 N. Y. 354.
New Jersey.
An alteration in a deed, against the interest of the party pro-
ducing the deed, need not be explained by him. Farlee v. Farlee,
1 Zab. 280.
Words through which a line has been drawn, but which are still
legible, form part of the deed. Rosenkrans v. Snover, 19 N. J. Eq.
420.
Admissibility of altered document. — A document is admissible in
evidence even though altered and no explanation is made; character
of the alteration is for the jury. Hoey v. Jarman, 39 N. J. L. 523.
40 N. J. L. 379.
Alteration of a receipt by the party holding it renders it inad-
missible in evidence; not. however, when such alteration is by a
stranger. Goodfellow v. Inslee, 12 K J. Eq. 355.
It is for the court to decide by inspection whether or not there
seems to be an alteration in a bond. Shinn v. White, 6 Hal. 187.
Material alterations. — Material alteration of a memorandum of
sale by the vendee annuls the instrument as a contract and as evi-
dence in favor of the vendee. Schmidt v. Quinzel, 55 N. J .Eq. 792.
Propriety of a material alteration must be shown by a prepon-
derance of the evidence. Putnam v. Clark, 33 N. J. Eq. 338.
Immaterial alterations made by a party, as avoiding the instru-
ment. Jones v. Crowley, 57 N. J. L. 222.
Alteration of a bill or note in a material part by the payee ren-
ders it void, though made without fraudulent intent. Lewis v.
Schenrk, 18 N. J. Eq. 166.
Alteration by a party, even though in an immaterial part, avoids
the deed. Wright v. Wright, 2 Hal. 175; White v. Williams, 3
N. J. Eq. 385.
Chap. XI.] THE LAW OF EVIDENCE. 423
By consent. — Alteration in a bond made with the consent of all
parties does not invalidate it. Camden Bank v. Hall, 14 X. J. L.
583.
Time of alteration. — No presumption that an alteration on lace
of a note was made after its execution. Bank v. Hall, 1 Hal. 215.
Whether an alteration was made before or after execution of the
instrument is for the jury. Moore V. Moore, Coxe, 303; Bank v.
Hall, 1 Hal. 215 ; Wright v. Wright, 2 Hal. 175; Richman v. Rich-
man, 5 Hal. 217; Hunt v. Cray, 35 N. J. L. 227; White v. Williams,
3 N. J. Eq. 385.
Alteration on the face of an assessment by commissioners is pre-
sumed to have been made before its execution. N. Riv. Meadow Co.
v. Shrewsbury Church, 2 Zab. 424.
Alteration by stranger. — The document is not invalidated by
material alterations made by a stranger if he acted without author-
ity. Hunt v. Gray, 35 N. J. L. 227.
Maryland.
Authorities. — Mutilation or obliteration of an instrument raises
the presumption that it was canceled. Handy v. State, 7 H. & J- 42.
An altered will not executed anew stands as if unaltered. Esch-
bach v. Collins, 61 Md. 478.
A party has no authority to fill unwritten spaces in a complete
bill or note. Burrows v. Klunk, 70 Md. 451.
Alterations by strangers. — Wickes v. Caulk, 5 H. & J. 36.
Material alterations.— Mitchell v. Ringgold, 3 H. & J. 159; Owen
v. Hall, 70 Md. 97.
Changing the date of maturity of a promissory note is a mate-
rial alteration. Avirett v. Barnhart, 86 Md. 545.
Pennsylvania.
Authorities. — An intentional material alteration renders the in-
strument void, even though made without wrongful intent. Craig-
head v. McLoney, 99 Pa. 211.
Alterations in deed of land do not revest title in grantor. Wal-
lace v. Harmstad, 15 Pa. 462.
Material alteration in negotiable note made by a party to it
renders it void even against a bona fide purchaser. Bank v. Chis-
olm, 169 Pa. 564.
424 A DIGEST OF [Pabt II.
Where the alterations are not suspicious in character, the pre-
sumption is as stated in the text. Zimmerman v. Camp, 155 Pa.
152.
Where the alteration is suspicious and unexplained, the docu-
ment may be excluded. Burg win v. Bishop, 91 Pa. 336; Hartley
v. Corboy, 150 Pa. 23.
As to filling blank spaces, see Bell v. Kennedy, 100 Pa. 215.
Presumption as to time. — There is no presumption as to when
alterations are made, but the whole question is for the jury. Citi-
zens' Nat. Bank v. Williams, 174 Pa. 66 ; Robinson v. Myers, 67
Pa. 9; Jordan v. Stewart, 23 Pa. 244.
Wills. — Authority for text as to alterations of a will. Linnard's
Appeal, 93 Pa. 313.
An altered will not executed anew stands as if unaltered. Sim-
relVs Estate, 154 Pa. 604.
By a stranger. — The rule does not extend to alterations made
by a stranger without the consent of the person having custody.
Mix v. Royal Ins. Co., 169 Pa. 639.
Immaterial alterations. — Robertson v. Hay, 91 Pa. 242.
Chap. XII.] THE LAW OF EVIDENCE. 425
CHAPTER XII.
OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE,
AND OF THE MODIFICATION AND INTERPRETATION OF
DOCUMENTARY BY ORAL EVIDENCE.
Article 90.*
evidence of terms of contracts, grants, and other
dispositions of property reduced to a document-
ARY FORM.
When any judgment of any Court or any other judicial or
official proceeding, or any contract or grant, or any other
disposition of property, has been reduced to the form of a
document or series of documents, no evidence may be given
of such judgment or proceeding, or of the terms of such
contract, grant, or other disposition of property, except the
document itself, or secondary evidence of its contents in
cases in which secondary evidence is admissible under the
provisions hereinbefore contained. 1 ISTor may the contents
of any such document be contradicted, altered, added to, or
varied by oral evidence.
Provided that any of the following matters may be
proved —
(1) Fraud, intimidation, illegality, want of due execu-
tion, want of capacity in any contracting party, the fact
• See Note XXXII. i Illustrations (a) and (6).
426 A DIGEST OF [Part II.
that it is wrongly dated, 2 want or failure of consideration,
or mistake in fact or law, or any other matter which, if
proved, would produce any effect upon the validity of any
document, or of any part of it, or which would entitle any
person to any judgment, decree, or order relating thereto. 3
(2) The existence of any separate oral agreement as to
any matter on which a document is silent, and which is not
inconsistent with its terms, if from the circumstances of
the case the Court infers that the parties did not intend the
document to be a complete and final statement of the
whole of the transaction between them. 4
(3) The existence of any separate oral agreement, con-
stituting a condition precedent to the attaching of any
obligation under any such contract, grant or disposition of
property. 5
(4) The existence of any distinct subsequent oral agree-
ment to rescind or modify any such contract, grant, or dis-
position of property, provided that such agreement is not
invalid under the Statute of Frauds, or otherwise. 6
(5) Any usage or custom by which incidents not ex-
pressly mentioned in any contract are annexed to contracts
of that description ; unless the annexing of such incident
to such contract would be repugnant to or inconsistent with
the express terms of the contract. 7
ZReffell v. Reffell, 1866, L. R. 1 P. & D. 139. Mr. Starkie extends
this to mistakes in some other formal particulars. 3 Star. Ev. 787-8.
3 Illustration (c).
* Illustrations (d) and (e).
6 Illustrations (f) and (g).
e Illustration (h).
7 Wigglesicorth v. Dallison, 1779, and note thereto, S. L. C. 528-
Chap. XII.] THE LAW OF EVIDENCE. 427
Oral evidence of a transaction is not excluded by the fact
that a documentary memorandum of it was made, if such
memorandum was not intended to have legal effect as a
contract, or other disposition of property. 8
Oral evidence of the existence of a legal relation is not
excluded by the fact that it has been created by a document,
when the fact to be proved is the existence of the relation-
ship itself, and not the terms on which it was established
or is carried on. 9
The fact that a person holds a public office need not be
proved by the production of his written or sealed appoint-
ment thereto, if he is shown to have acted on it. 10
Illustrations.
(a) A policy of insurance is effected on goods " in ships from
Surinam to London." The goods are shipped in a particular ship,
which is lost.
The fact that that particular ship was orally excepted from the
policy cannot be proved.n
(b) An estate called Gotton Farm is conveyed by a deed which de-
scribes it as consisting of the particulars described in the first di-
vision of a schedule and delineated in a plan on the margin of the
schedule.
Evidence cannot be given to show that a close not mentioned in the
schedule or delineated in the plan was always treated as part of Got-
ton Farm, and was intended to be conveyed by the deed.12
560. A late case is Johnson v. Raylton, 1881, 7 Q. B. D. 438, in
which it was held that evidence was admissible of a custom that in a
contract with a manufacturer for iron plates he warranted them to
be of his own make.
s Illustration (i).
9 Illustration (j).
io See authorities collected in 1 Ph. Ev. 449-50; Taylor, s. 171.
11 Weston v. Ernes, 1808, 1 Tau. 115.
12 Barton v. Dawes, 1850, 10 C. B. 261-265.
428 A DIGEST OF [Pabt II.
(c) A institutes a suit against B for the specific performance of a
contract, and also prays that the contract may be reformed as to one
of its provisions, as that provision was inserted in it by mistake.
A may prove that such a mistake was made as would entitle him
to have the contract reformed. 13
(d) A lets land to B, and they agree that a lease shall be given by
A to B.
Before the lease is given, B tells A that he will not sign it unless
A promises to destroy the rabbits. A does promise. The lease is
afterwards granted, and reserves sporting rights to A, but does not
mention the destruction of the rabbits. B may prove A's oral agree-
ment as to the rabbits.14
(e) A and B agree orally that B shall take up an acceptance of
A's, and that thereupon A and B shall make a written agreement for
the sale of certain furniture by A to B. B does not take up the ac-
ceptance. A may prove the oral agreement that he should do so.15
(/) A and B enter into a written agreement for the sale of an in-
terest in a patent, and at the same time agree orally that the agree-
ment shall not come into force unless C approves of it. C does not
approve. The party interested may show this.16
(g) A, a farmer, agrees in writing to transfer to B, another
farmer, a farm which A holds of C. It is orally agreed that the
agreement is to be conditional on C's consent. B sues A for not
transferrin:.' the farm. A may prove the condition as to C's consent
and the fact that he does not consent. 1 ?
(h) A agrees in writing to sell B 14 lots of freehold land and make
a good title to each of them. Afterwards B consents to take one lot
though the title is bad. Apart from the Statute of Frauds this agree-
ment might be proved.18
(i) A sells B a horse, and orally warrants him quiet in harness.
A also gives B a paper in these words: "Bought of A a horse for
171. 2s. 6d."
13 Story's 'Equity Jurisprudence,' chap. v. ss. 153-162.
i* Morgan v. Griffiths, 1871, L. R. 6 Ex. 70; and see Angell v.
Duke, L. R. 1875, 10 Q. B. 174.
MLindley v. Laccy, 1864, 17 C. B. (N. S.) 578.
16 Pym v. Campbell, 1856, 6 E. & B. 370.
VWallis v. Littell, 1861, 11 C. B. (N. S.) 369.
18 Goss v. Lord Nugent, 1833, 5 B. & Ad. 58, 65.
Chap. XII.] THE LAW OF EVIDENCE. 429
B may prove the oral warranty .19
(;') The question is, whether A gained a settlement by occupying
and paying rent for a tenement. The fact3 of occupation and pay-
ment of rent may be proved by oral evidence, although the contract is
in writing.20
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 85 et seq.,
275 et seq.; McKelvey on Evidence, pp. 366-373.
The main rule. — Seitz v. Brewers' Co., 141 U. S. 510; Wodock v.
Robinson, 148 Pa. 503; Johnson v. Glover, 121 111. 283; Boyd v. Paul,
125 Mo. 9; Tuttle v. Burgett, 53 0. St. 498; White Sewing Machine
Co. v. Feeley, 72 Conn. 184; Hildreth v. Hartford, etc., Tramway
Co., 73 Conn. 631; Perry v. Bigelow, 128 Mass. 129; Bergin v. Wil-
liams, 138 Mass. 544; Colt v. Cone, 107 Mass. 285; Munde v. Lambie,
122 Mass. 336; Tower v. Richardson, 6 Allen (Mass.), 351; Doyle
v. Dixon, 12 Allen (Mass.), 576.
Fraud, mistake, etc. — Fire Assn. v. Wickham, 141 U. S. 564; Koch
v. Roth, 150 111. 212; Paul v. Rider, 58 N. H. 119; Farwell v. Ensign,
66 Mich. 600; Kiel v. Choate, 92 Wis. 517; Booth v. Robinson, 55 Md.
419.
Sustaining text. Brainerd v. Brainerd, 15 Conn. 586 ; Park Bros.
d Co. V. Blodgett & Clapp Co., 64 Conn. 38 ; Fox v. Tabel, 66 Conn.
397 ; Todd v. Munson, 53 Conn. 589 ; Feltz v. IFaZ/cer, 49 Conn. 98 ;
Martin v. Clark, 8 R. 1. 389, 5 Am. Rep. 586 ; Fletcher v. Willard, 14
Pick. (Mass.) 464; Case v. Gerrish, 15 Pick. (Mass.) 49.
The writing not a complete statement. — Stivers v. Stivers, 97 Cal.
518; Stahelin v. Lotve, 87 Mich. 124; Band v. Ttyan Co., 63 Minn.
539; Piatt v. ^na /ns. Co., 153 111. 113, 121; Greening v. Steele,
122 Mo. 287; Caulfield v. Hermann, 64 Conn. 327; Averill v. Sawyer,
62 Conn. 568 ; Pacific Iron Works v. Neichall, 34 Conn. 76 ; Durkin
v. Cobleigh, 156 Mass. 108, 32 Am. St. Rep. 436; A'eaZ v. 2*7inf, 88
Me. 73.
Condition precedent. — Burke v. Dclaney, 153 U. S. 228; Smttft v.
Mussetter, 58 Minn. 159; Wendlinger v. S»ii<ft, 75 Va. 309; State v.
Want's, 57 Ark. 73; Keener v. Cra^o, 81 Pa. 166; Harrison v. Morton,
83 Md. 456; Fawnce v. State Ins. Co., 101 Mass. 279; Wilson v. Pow-
ers, 131 Mass. 539; Whitaker v. Salisbury, 15 Pick. (Mass.) 534.
19 Ailcn v. Prircfc, 1838, 4 M. & W. 140.
20 R. v. ffuZJ, 1827, 7 B. & C. 611.
43U A DIGEST OF [Pabt II.
Sustaining text. White Sewing Machine Co. v. Feeley, 72 Conn.
184; Atwater v. Hewitt, 72 Conn. 238; McFarland v. Sikes, 54 Conn.
250; Trunebull v. O'Hara, 71 Conn. 172; Burns & Smith Lumber Co.
v. Doyle, 71 Conn. 742; Carter v. Bellamy, Kirby (Conn.), 291; .Herd
v. PisseZ, 1 Root (Conn.), 260; Bull v. Talcot, 2 Root (Conn.), 120;
Converse v. Moulton, 2 Root (Conn.), 195; Avery v. Chappel, 6
Conn. 275; Crocker v. Higgins, 7 Conn. 349; flaZZ v. Rand, 8 Conn.
573; Reading v. Wesson, 8 Conn. 121; Jones v. TForner, 11 Conn.
49; Baldicin v. Carter, 17 Conn. 205; Beckley v. Munson, 22 Conn.
312; Clarke v. Tappin, 32 Conn. 67; Mead v. Strouse, 41 Conn. 567;
Pierpont v. Longden, 46 Conn. 499, 500; Hotchkiss v. Higgins, 52
Conn. 213; WtncfteZZ- v. Coney, 54 Conn. 33; 1Fes£ Haven Water
Co. v. Redfield, 58 Conn. 40; iLtna v. Killbride, 58 Conn. 117;
Osborne v. Taylor, 58 Conn. 441; Beard v. Boylan, 59 Conn. 187;
Stanton v. tf. Y. <£ W. P. P. 22. Co., 59 Conn. 288; Putter v. Barnes,
60 Conn. 186.
Subsequent agreement. — TYaZ v. Pi'%, 123 U. S. 578; Holloway v.
Pric7c, 149 Pa. 178; Pratt's Admr. v. E7. S., 22 Wall. 496, 507; Cfturcfc
t. Florence Iron Works, 45 N. J. L. 129; West Haven Water Co. v.
Redfield, 58 Conn. 40; Stearns v. PaH, 9 Cush. (Mass.) 31; Munroe
v. Perkins, 9 Pick. (Mass.) 298; Shaffer v. Sawyer, 123 Mass. 294.
Custom.— Pa<7e v. Cole, 120 Mass. 37; Robinson v. [7. flf., 13 Wall.
363; Pennell v. Trans. Co., 94 Mich. 247; Patterson v. Crowther, 70
Md. 124; Leavitt v. Kennicott, 157 111. 235; Kilgore v. Bulkeley, 14
Conn. 392; Panfc of Weto Milford v. tfew> 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 Per Leach, V.C. in Hurst v. Leach, 1821, 5 Madd. 351, 360-1.
The rule in this case was vindicated, and a number of other cases
both before and after it were elaborately considered by Lord St. Leon-
ards, when Chancellor of Ireland, in Hall v. Hall, 1841, 1 Dru. &
War. 94, 111-133. See, too, Jenner v. Hinch, 1879, 5 Prob. Div. 106.
Chaf. XII.] THE LAW OF EVIDENCE. 449
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 275 et seq.;
17 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 1 et seq.; 1st
ed., vol. 17, p. 419 et seq.
Actual intention. — The actual intention cannot be shown by parol
evidence. Pingry v. IVatkins, 17 Vt. 379; Kelley v. Kelley, 25 Pa. St.
406; Palmer v. Albee, 50 la. 429; Taylor v. Morris, 90 N. C. 614;
Marshall v. Haney, 4 Md. 498, 59 Am. Dec. 92; Crooks v. Whitford, 47
Mich. 283; Adams v. Morgan, 150 Mass. 143.
Identifying persons and things. — Aldrich v. Gaskill, 10 Cush.
(Mass.) 55; Melcher v. Chase, 105 Mass. 125; Cleverly v. Cleverly,
124 Mass. 314; Bergin v. Williams, 138 Mass. 544; Scanlon v. Wright,
13 Pick. (Mass.) 523; Peabody v. Broivn, 10 Gray (Mass.), 45;
Kingsford v. Bood, 105 Mass. 495; Simpson v. Dix, 131 Mass. 179;
Watsoti v. Neio Milford, 72 Conn. 565.
E W and E W, Junior, father and son, lived in the same town. The
latter bought a piece of land, and received a deed of it, drawn to E W.
Held, that he could show that it was intended to be made to himself —
E W, Junior, both because the ambiguity, arising by parol, could be
explained by parol, and because the deed would otherwise be inopera-
tive for want of delivery. Coit v. Starkweather, 8 Conn. 294.
Under the rule which admits parol evidence in cases of ambiguity,
to aid in the construction of a will, it is necessary that the words of
the will should describe accurately the subject or object of the gift,
and that the parol evidence should go only to show which of cer-
tain properly-described subjects or objects was intended. Fairfield v.
Laivson, 50 Conn. 510.
Meaning of words, etc. — McDonough v. Jolly, 165 Pa. St. 542 ; Con-
verse v. Wcad, 142 111. 132: Walrath v. Whittekind, 26 Kan. 482;
Confederate Note Case, 19 Wall. 548; Sloops v. Smith, 100 Mass. 63,
66, 1 Am. Rep. 857.
The meaning of a term in a certain business may be shown by parol
evidence. Parker v. Selden, 69 Conn. 552: Fuller v. Metropolitan Life
Ins. Co., 70 Conn. 647.
The parties had entered into a written contract which provided
that one of them should " work " a certain street, and the alleged
breach of this agreement formed one of the claims submitted to the
29
450 A DIGEST OF [Part II.
arbitrators. Held, that parol evidence was admissible to show
the special meaning of this term as understood by the parties at
the time of making the contract; and that such evidence was not
limited to expert testimony. In re Curtis-Castle Arbitration, 64
Conn. 514, 515.
A note payable " in cotton yarn, at the wholesale factory prices,"
may be explained by evidence that, by the usage of manufacturers
and dealers in cotton yarn, the term " wholesale factory prices "
means a different scale of prices from the actual market wholesale
prices. Avery v. Stewart, 2 Conn. 73.
Surrounding circumstances. — Reed v. Ins. Co., 95 U. S. 23 ; Gilmor's
Estate, 154 Pa. St. 523; Perry v. Bowman, 151 111. 25; Andrews v.
Dyer, 81 Me. 104; Barry v.- Bennett, 7 Mete. (Mass.) 354; Hurley v.
Brown, 98 Mass. 545; Russell v. Lathrop, 117 Mass. 424.
It is a familiar rule that a deed shall, if possible, be so construed
as to effectuate the intention. In arriving at that intention it is al-
ways admissible to consider the situation of the parties and the cir-
cumstances, and every part of the writing should be considered with
the help of that evidence. Bartholomew v. Muzzy, 61 Conn. 393.
The defendant offered evidence of a conversation between the
agent of the plaintiffs and himself before a certain written agree-
ment was made, as to the kind and nature of employment to be
given him under the agreement. Held, that, so far as the evidence
went to contradict, add to or vary the written agreement it was
inadmissible, but that it was admissible so far as it tended to show
the surrounding circumstances at the time the agreement was made.
Excelsior Needle Co. v. Smith, 61 Conn. 59.
Indefiniteness as to object intended. — Where the grantor in a
deed described the premises as the farm on which he then dwelt,
held, that parol evidence was admissible to show that at that time
a certain parcel of land subsequently claimed by the grantee, as
parcel of the farm, was uncultivated and uninclosed, and divided
from the farm by a highway, and that the grantor ever retained,
the exclusive possession of it. Doolittle v. Blakesley, 4 Day (Conn.),
272, 465. See Bennett v. Pierce, 28 Conn. 315.
More proper meaning of language. — Appeal of Washington & Lee
Univ., Ill Pa. St. 572; Covert v. Sebern, 73 la. 564; Thomell v.
Brockton, 141 Mass. 157; Hatch v. Douglas, 48 Conn. 110, 40 Am.
Rep. 154; First Society v. Piatt, 12 Conn. 88; Bulkley v. Chapman,
Chap. XII.] THE LAW OF EVIDENCE. 451
9 Conn. 8 ; Mullen v. Reed, 64 Conn. 248 ; Davies v. Davies, 55 Conn.
319.
Ambiguities. — Bradley v. Pees, 113 111. 327; Morgan v. Burrows,
45 Wis. 211; Go/f v. Roberts, 72 Mo. 570; Pfeifer v. Nat. Ins. Co., 62
Minn. 536.
Parol evidence of intention is inadmissible to explain a contract
ambiguous on its face. Brown v. Slater, 16 Conn. 196.
A latent ambiguity, that is, an ambiguity arising from extrinsic
evidence, may be removed by extrinsic evidence. Bristol v. Ontario
Orphan Asylum, 60 Conn. 477.
Practical construction. — The practical construction by the par-
ties can be shown. Dist. of Columbia v. Oallaher, 124 U. S. 505;
Eosmer v. McDonald, 80 Wis. 54; Howard v. Fessenden, 14 Allen
(Mass.), 124; Stevenson v. Erskine, 99 Mass. 367; Morris v. French,
106 Mass. 326; Lovejoy v. Lovett, 124 Mass. 270; Carney v. Hennes-
sey, 74 Conn. 107, 49 Atl. 910; Hamilton v. Dennison, 56 Conn. 368;
Bray v. Loonier, 61 Conn. 464.
Technical terms, special significations, figures, marks, etc. — Fowler
v. Mtna Fire Insurance Co., 7 Wend. 270 ; Dow v. Whetten, 8 Wend.
160; Collender v. Dinsmore, 64 Barb. 457, 55 N. Y. 200; Sturm v.
Williams, 6 J. & S. 325 ; Coit v. Commercial Insurance Co., 7 Johns.
385; Bend v. Georgia Insurance Co., 1 N. Y. Leg. Obs. 12; Sleght v.
Hartshorne, 2 Johns. 531, reversing 1 Johns. 192; Astor v. Union In-
surance Co., 7 Cow. 202 ; Dana v. Fiedler, 12 N. Y. 40, 1 E. D. Smith,
463; Collender v. Dinsmore, 55 N. Y. 200, 64 Barb. 457; Dickinson v.
Water Commissioners, 2 Hun, 615, 5 S. C. 185; Nelson v. Sun Mutual
Insurance Co., 71 N. Y. 453; Storey v. Salomon, 6 Daly, 531; Silber-
man v. Clark, 96 N". Y. 522 ; Kennedy v. Porter, 109 N. Y. 526 ; Camp-
bell Printing Press, etc., Co. v. Walker, 1 N. Y. St. R. 200, 114 N. Y.
7, 22 N. Y. St. P. 173, affirming 9 N. Y. St. R. 722 ; Neiohall v. Apple-
ton, 114 N. Y. 140, 22 N. Y. St. R. 670; Smith v. Clews, 114 N. Y.
140, 22 N. Y. St. R. 670; Atkinson v. Truesdell, 127 N. Y. 230, 38
N. Y. St. R. 159, affirming 25 N. Y. St. R. 821, 6 N. Y. Supp. 509.
Abbreviations. — Abbreviations may be explained by parol. Con.
Ben. Assn. v. Loomis, 142 111. 560; Razor v. Razor, 142 111. 375; Con-
verse v. Wead, 142 111. 132.
The meaning of C O D may be shown by parol. Adams Express
Co. v. Lesem, 39 111. 313.
The term " southeast 40 " may be defined by parol evidence, where
it is used in a deed. Evans v. Gary, 174 111. 595, 51 N. E. 615.
452 A DIGEST OF [Pabt II.
New Jersey.
Identity. — Identity may be proved by parol when there 13 a
misnomer, Youngs v. Sunderland, 3 Green, 32.
Person or thing muaiit by a peculiar name. Looming v. Sisters,
35 X. J. Eq. 392.
Parol evidence admissible to identify a note referred to in a writ-
ing. Martin v. Bell, 3 Harr. 107. Or to identify a legatee. Leans
v. Lays, 3 X. J. Eq. 204. Or to identify the subject-matter. Fitch
v. Archibald, 29 X. J. L. 160.
Parol evidence admitted to identify the demand which a mort-
gage was given to secure. Tallman v. ^Yallack, 5-4 X. J. Eq. 655.
Meaning of terms. — Business usage may be proved to give certain
terms a special meaning. Steward v. Scudder, 4 Zab. 96; Scltenck
v. Qriffen, 38 X. J. L. 463.
Oral evidence admissible to show that ordinary words are used in
a special or technical sense. Smith v. Lunger, 64 X. J. L. 539.
Parol evidence admitted to explain the term "Domestic Missionary
Society" in a will. Van Nostrand v. Reformed Church, 59 X. J. Eq.
19. And to identify the "Home Missionary Society.'' Congregational
Home Mis. Soc. v. Van Arsdale, 58 X. J. Eq. 293.
Though a c /ntract describes a sum of money as liquidated dam-
ages or as a penalty, the court is not bound by such description
but will inquire as to the true facts of the case. Whiteld V. Levy,
35 X. J. L. 149; Cheddick v. Marsh, 1 Zab. 403; Church v. Stock-
ton, S X. J. Eq. 520.
Doubtful meaning. — Parol evidence admissible to explain doubt-
ful meaning. Hartwell v. Cammun, 10 X. J. Eq. 128: Suffem v.
Butler, 21 N". -I. Eq. 410; Wuesthoff v. Seymour, 22 X. J. Eq. 66;
Leigh v. Savidge, 14 X. J. Eq. 124.
Parol evidence admitted to show that time was of the essence,
where the writjig left the matter doubtful. King v. Ruckman, 20
X. J. Eq. 316. 21 X. J. Eq. 599.
Latent ambiguity. — Latent ambiguity defined. Den. v. Cubberly,
7 Hal. 308.
Latent ambiguity explainable by parol. Den. v. Cubberly, 7 Hal.
308: JaeJ.-.sm, v. Perrine, 35 X. J. L. 137; Axford v. Meeks, 59
X. T. L. 502.
Patent ambiguity. — Parol evidence not admissible to explain a
patent ambiguity. TTnlztrJ v. Meeker, IS X. .1. Eq. 136; Carr v.
Land Co., 22 X. J. Eq. 85; S. C, 19 X. J. Eq. 424.
CliAP.XlI.] THE LAW OF EVIDENCE. 453
" Circumstances of the case." — To put the court in the position
of the testator and enable it to understand the language of his will,
the situation and circumstances of the testator may be shown by
parol. Barnard v. Barlow, 50 X. J. Eq. 131 ; reversed, Barlow v.
Barnard, 51 X. J. Eq. 020.
To arrive at the intention of the parties, the circumstances sur-
rounding the execution of a contract may be proved. Crane v. Bon-
nell, 2 X. J. Eq. 204; Morris Canal Co. v. Matthieson, 3 X. J. Eq.
385; Homer v. Leeds, 25 X. J. L. 100; Ravens v. Thompson, 20
X. J. Eq. 383.
The object for which a written instrument was made may be
shown by parol; for example, that a bond and mortgage were given
as mere collateral security and not to merge the prior account.
Van VKet v. Jones, 20 X. J. L. 340.
Parol evidence admissible to explain how an instrument was
executed. Willis v. Ferriald, 33 X. J. L. 207.
Illustration (e).— Beatty v. Trustees, 39 X. J. Eq. 452.
Paragraph 7. — Griseom v. Evans, 40 X. .T. L. 402, 42 X. J. L. 579.
Paragraph 9. — Van Houten v. Post, 33 X. J. Eq. 344.
Partnership. — Yoorhees v. Jones, 29 X. J. L. 270.
Maryland.
Surrounding circumstances. — The surrounding circumstances may
be proved to throw light on the intention of the parties. Bank v.
Gerke, 68 Md. 449.
A written acknowledgment of an indebtedness may be explained
by proof of the nature of the transaction out of which it arose.
Barger v. Collins, 7 H. & J. 213.
Independent and collateral facts may be shown by parol to aid in
the interpretation of a writing. Bladen v. 'Wells, 30 Md. 577; Stock-
ham v. Stockham. 32 Md. 190.
The method of making a contract may be proved to aid in it*
interpretation. Phoenix Ins. Co. v. Ryland, 09 Md. 437.
Identifying subject-matter. — Parol evidence not contradicting or
varying a writing, but explaining obscurity and identifying subject-
matter is admissible. Criss v. Withers, 26 Md. 553: Fryer v. Pat-
rick, 42 Md. 51 : Warfield v. Boothe, 33 Md. 63.
The subject-matter of a will may be identified by parol. Chase v.
Stockett, 72 Md. 235.
454 A DIGEST OF [Part II.
Parol evidence is admissible to make certain the parties or the
subject-matter. Rice v. Forsyth, 41 Md. 389; Dorsey v. Eagle, 7
G. & J. 321.
Practical construction by the parties. — Acts of one party showing
his understanding of a contract are not admissible as against the
other party. Stockham v. Stockham, 32 Md. 196.
Explanation of terms. — Where three " cargoes " of phosphate
were sold, it may be shown by parol that a certain number of tons
formed the average cargo in that trade. Pinckney v. Dambman, 72
Md. 173.
A word may be shown to have a special meaning in a certain
trade. Susquehanna Fer. Co. v. White, 66 Md. 444.
Latent ambiguities. — -An ambiguity which is latent may be ex-
plained by parol. Stockham v. Stocfcham, 32 Md. 196 ; Rice v.
Forsyth, 41 Md. 389; Dorsey v. Eagle, 7 G. & J. 321; Mitchell v.
Mitchell's Lessee, 6 Md. 224.
Latent ambiguity defined. Marshall v. Haney, 4 Md. 498.
The intention of a testator cannot be shown by parol except to
explain a latent ambiguity. Brome v. Pembroke, 66 Md. 193; Zim-
merman v. Hafer, 81 Md. 347.
Patent ambiguities. — A patent ambiguity is one apparent on the
face of the instrument and' generally cannot be explained by parol.
Marshall v. Haney, 4 Md. 498; Newcomer v. Kline, 11 G. & J. 498;
Clarke v. Lancaster, 36 Md. 196; Castleman v. Du Yal, 89 Md. 657.
Actual intention. — The actual intention cannot be shown by parol
evidence. Marshall v. Haney, 4 Md. 498, 59 Am. Dec. 92.
In construing a municipal resolution, parol evidence of the in-
tention of the members of the council is not admissible. Hagers-
town v. Startzman, 93 Md. 606.
A contract partly written and partly oral is for the jury. Roberts
v. Bonaparte, 73 Md. 191.
Pennsylvania.
Actual intention. — Where the terms of the writing are clear and
unambiguous, the intention of the parties must be drawn from the
writing alone. Eeagy v. L'mberger, 10 S. & R. 339; Patterson v.
Forry, 2 Pa. 450; Hancock's Appeal, 34 Pa. 155: Kennedy v. Road
Co., 25 Pa. 221: Druckenmiller v. Young, 27 Pa. 97; Albert v.
Ziegler, 29 Pa. 50; Fisher v. Deibert. 54 Pa. 460; Kirk v. Hartman,
63 Pa. 97: Kelley v. Kelley, 25 Pa. 400.
Chap. XII.] THE LAW OF EVIDENCE. 455
Identity of persons and things. — Parol evidence is admissible to
identify the subject-matter and apply the writing to it. Appeal of
Morris, 88 Pa. 368; Brownfield v. Brownfield, 20 Pa. 55; Peart v.
Brice, 152 Pa. 277; Palmer v. Farrell, 129' Pa. 162; Jackson v.
Litch, 62 Pa. 451; McDermott v. Hoffman, 70 Pa. 31; Barnhari v.
iJidcZZe, 29 Pa. 92.
The locality and identity of the subject-matter may be shown by
parol evidence. Bertsch v. Lehigh C. & N. Co., 4 Rawle, 130; Nixon
v. McCallmont, 6 W. & S. 159; Gould v. Lee, 55 Pa. 9!) ; C7arfce v.
Adams, 83 Pa. 309.
Parol evidence admitted to show that testator in saying " Foreign
Missionary Society " meant the one connected with a certain church.
Amberson's Estate, 204 Pa. 397.
References made to extrinsic matters may be explained. Monoe.
Bridge Co. v. American Iron Bridge Mfg. Co., 83 Pa. 517.
An insurance policy covered a " barn including sheds and addi-
tions attached." This is explainable by parol. Cummins v. In-
surance Co., 197 Pa. 61.
Surrounding circumstances. — Parol testimony of the surrounding
circumstances is admissible to aid in the interpretation. Douthett
V. Gas Co., 202 Pa. 416; Gilmores Appeal, 154 Pa. 523.
Conversations and circumstances may be proved to explain am-
biguities. Miller v. Fichlhorn, 31 Pa. 252; Foster v. McGraic, 64
Pa. 464; Caley v. Railway Co., 80 Pa. 363.
The purpose for which a writing was made may be shown. Ap-
peal of Sweetzer, 71 Pa. 364.
Meaning of words, etc. — McDonough v. Jolly, 165 Pa. 542; Cones-
toga Co. v. Finke, 144 Pa. 159.
Parol evidence is admissible to explain the term " due diligence."
Bartley v. Phillips, 165 Pa. 325.
The word "colliery" explained by parol. Carey v. Bright, 58
Pa. 70.
Expert testimony admitted as to the meaning of technical terms.
Miller v. Railway Co., 179 Pa. 350.
Abbreviations. — The abbreviations in a bank-book may be ex-
plained. Wingate v. Bank. 10 Pa. 104.
More proper meaning of language. — Appeal of Washington <& Lee
Univ., Ill Pa. 572.
Paragraph (6). — Best v. Hammond, 55 Pa. 409.
456 A DIGEST OF [Part II.
Paragraph (9). — Bank v. Fordyce, 9 Pa. 275.
Agency. — One may show by parol that he contracted as agent
for another. Hubbert v. Borden, Whart. 79.
It may be shown by parol that one who signed a lease did not
actually sign as landlord although the lease represents him to be
such. Swint v. Oil Co., 184 Pa. 202.
Ambiguity in general. — Parol evidence admissible. ~\York v. Grier,
Add. 372; Grier v. Huston, 8 S. & R. 402; Eckel v. Jones, 8 Pa. 501;
Caley v. Railroad Co., 80 Pa. 303; Shoemaker v. Ballard, 15 Pa. 92.
Where a contract incorporates a bill of items and also certain
plans and specifications, and the latter are in part contradictory
to the former, it may be shown by parol which paper was intended
to control. Kendig v. Roberts, 187 Pa. 339.
Patent ambiguities. — Patent ambiguity is not explainable by
parol. Wright v. Wright, 2 Watts. 89. But see Selden v. Williams,
9 Watts, 9.
Latent ambiguities. — Place v. Proctor, 2 Penny. 204; Mutual Ins.
Co. v. Sailer, 67 Pa. 108.
A latent ambiguity may be explained by parol. Hetherington v.
Clark, 30 Pa. 393; Mutual Ins. Co. v. Sailer, 67 Pa. 108; Coleman v.
Eberly, 76 Pa. 197.
For the jury. — Where an agreement is partly written and partly
oral the construction of the whole is for the jury. Philadelphia v.
Stewart, 201 Pa. 526. See also Shafer v. Senseman, 125 Pa. 310.
Written parts prevail over printed. Haws v. Insurance Co., 130
Pa. 113.
Article 92.*
cases to which articles 90 and 91 do not apply.
Articles 90 and 91 apply only to parties to documents,,
and their representatives in interest, and only to cases in
which some civil right or civil liability is dependent upon
the terms of a document in question. Any person other
than a party to a document or his representative in interest
* See Note XXXIV.
Chap. XII.] THE LAW OF EVIDENCE. 457
may, notwithstanding the existence of any document, prove
any fact which he is otherwise entitled to prove ; and any
party to any document or any representative in interest of
any such party may prove any such fact for any purpose
other than that of varying or altering any right or liability
depending upon the terms of the document.
Illustrations.
(a) The question is, whether A, a pauper, is settled in the parish
of Cheadle. A deed of conveyance to which A was a party is pro-
duced, purporting to convey land to A for a valuable consideration.
The parish appealing against the order was allowed to call A as a
witness to prove that no consideration passed.48.
(6) The question is, whether A obtained money from B under false
pretences. The money was obtained as a premium for executing a
deed of partnership, which deed stated a consideration other than the
one which constituted the false pretence. B may give evidence of the
false pretence although he executed the deed mis-stating the consid-
eration for the premium.49
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (loth ed.), sec. 279; 17
Am. & Eng. Encyclopaedia of Law (1st ed.), p. 453 et seq.
Strangers to instrument. — Bruce v. Roper Co., 87 Va. 381 ; Needles
v. Hanifan, 11 111. App. 303; Burns v. Thompson, 91 Ind. 146;
Pfeifer v. Nat. Ins. Co., 62 Minn. 536, 538; First Nat. Bank v.
Dunn, 55 N. J. L. 404; Libby v. Mt. Monadnock, etc., Co., 47 N. H.
587, 32 Atl. 772; Low v. Blodgett, 21 N. H. 121; Edgerly v. Emer-
son, 23 N. H. 555, 55 Am. Dec. 207; Furbush v. Goodwin, 25 N. H.
425; Woodman v. Eastman, 10 N. H. 359; Wilson v. Sullivan, 58
N. H. 260: Burnham v. Dorr, 72 Me. 200. Contra, McLellan v.
Cumberland Bank, 24 Me. 566; Fonda v. Barton, 63 Vt. 355, 22
« R. v. Cheadle, 1832, 3 B. & Ad. 833.
« R. v. Adamson, 1843, 2 Moody, 286.
A DIGEST OF [Part II.
All. "i!»4: Shearer v. Babson, 1 Allen (Mass.), 486; Carpenter v.
King, 9 Mete. (Mass.), 511.
A stranger to a written instrument is not estopped by it from ad-
ducing parol testimony to prove a fraudulent operation of it upon
his interests. Reading v. Weston, 8 Conn. 121.
The defendant offered to show an oral agreement between him-
self and the mortgagee, at the time the mortgage was given, that
he, the defendant, should have the possession of the mortgaged
premises until the mortgagee should demand possession. Held, that
whatever force such agreement might have as between the imme-
diate parties to it, the plaintiff, a stranger, could not be affected
by it. Downing v. Sullivan, 64 Conn. 4.
The owner of a house, after having employed a broker to sell it,
sold it himself to S, a person not sent by the broker. The broker,
not being apprised of this, afterwards obtained an offer from B, of
the same price for the property at which it had already been sold.
This having been refused, and B having discovered the prior sale,
he offered S $1,000 for his bargain, which was accepted, and the
conveyance was made by the owner directly to B. In a suit by
the broker for his commission, — Held, that the owner was not
precluded, by the term of the deed, from showing by parol that B
really purchased of S. Hungerford v. Hicks, 39 Conn. 264.
Collateral proceeding. — Chopin v. Dobson, 78 N. Y. 74; Maddock
v. Root, 72 Hun, 98; affirmed in 150 X. Y. 561; Boicen v. Bank of
Newport, 11 Hun, 226; Engel v. Eastern Breidng Co., 19 Misc. Rep.
632, 44 N. Y. Supp. 391; Sheely v. Cannon, 17 Wkly. Dig. 159;
Adams v. Van Brant, 11 N. Y. St. R. 659; Potter v. Weidman, 20
Wkly. Dig. 110; Lamphire v. Slaughter, 61 How. Pr. 36.
New Jersey.
Strangers. — Rule applies only to parties and their privies. Bank
v. Dunn, 55 X. J. L. 401,
Instrument only collaterally in issue. — "Where the paper relates
merely to some collateral fact and is not the subject of the action,
parol evidence of its contents is admissible. Gilbert v. Duncan, 29
X. J. L. 13.3, 521; West v. State, 2 Zab. 212.
To show interest in a witness he may be asked on cross-examina-
tion as to the contents of a writing under which his interest arises.
Uou-rll v. Ashmore, 2 Zab. 261.
Parol evidence of interest in a witness is admissible, although
written ovulrTHo p\i>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<ziment; the result was and is that widowhoods are usually very
short.
3 Aylesford Peerage Case, 1885, 11 App. Ca. 1, in which the general
rule stated above is considered and affirmed.
Chap. XIV.] THE LAW OF EVIDENCE. 495
512; Egbert v. Greenwalt, 44 Mich. 245; Scanlon v. Walshe, 81 Md.
118; Goss v. Froman, 89 Ky. 318; Scott v. Hillenberg, 85 Va. 245.
The presumption holds even if the parties are, while still married,
living apart by consent. Hemingway v. Touner, 1 Allen (Mass.), 29.
If the husband has access his impotency must be clearly proved in
order to rebut the presumption stated in the text. Com. v. Wenz, 1
Ashm. (Pa.) 269; State v. Goode, 10 Ir. L. (N. C.) 49; State v.
Broadway, 69 N. C. 411.
Non-access. — Sustaining text. Wright v. Hicks, 12 Ga. 155, 56
Am. Dec. 451 ; Com. v. Shepherd, 6 Binn. (Pa.) 283, 6 Am. Dec. 449;
Dean v. State, 24 Ind. 483.
Proof of non-access. — The non-access may be" proved by circum-
stantial evidence, not alone by witnesses who could testify that the
husband was constantly at a distance from the wife. Pittsford v.
Chittenden, 58 Vt. 49; State v. Pettaway, 3 Hawks. (N. C.) 623.
Evidence of husband or wife. — Sustaining text. Dennison v. Paige,
29 Pa. St. 420; Com. v. Shepherd, 6 Binn. (Pa.) 273; Parker v.
Way, 15 N. H. 45; Stegall v. Stegall, 2 Brock. (U. S.) 256; Klein-
hart v. Ehlers, 38 Pa. St. 439 ; Clapp v. Clapp, 97 Mass. 531 ; Wright
v. Hicks, 15 Ga. 160; State v. Herman, 13 Ired. (N. C.) 502; Hem-
mingway v. Touner, 1 Allen (Mass.), 209.
" Non-access cannot be proved by either the husband or the wife
whether the proceeding is one of settlement, or bastardy, or to re
cover property claimed as heir-at-law." Dennison v. Paige, 29 Pa. St
420, 72 Am. Dec. 644. See also Cranford v. Blackburn, 17 Md. 49
77 Am. Dec. 323; Easley v. Com. (Pa.), 11 Atl. 220; Com. v. Strieker
1 Browne (Pa.), xlvii, appendix; Com. v. Shepherd, 6 Binn. (Pa
283, 6 Am. Dec. 449 ; Corson v. Corson, 44 N. H. 587 ; Boykin v. Boy
kin, 70 N. C. 262, 16 Am. Rep. 776; Egbert v. Greenwalt, 44 Mich
246, 38 Am. Rep. 260; Tioga Co. v. So. Creek Tp., 75 Pa. St. 436
(stating the reason of the rule) ; Mink v. State, 60 Wis. 583, 50 Am.
Rep. 386.
Evidence. — Matter of Taylor, 9 Paige, 611.
Declaration of parties. — Sustaining text. Matter of Taylor, 9
Paige, 611.
The marriage of parents, since deceased, may be shown by declara-
tions made ante litem niotam. Canjolle v. Ferrie, 23 N. Y. 90.
Presumption of legitimacy. — Harrorth v. Gill, 30 Ohio St. 627 ;
Sutphin v. Cox, 1 Weekly Law Mag. 346; Schaffer v. Mueller, 9
496 A DIGEST OF [Past III.
Weekly Law Bulletin, 287; Roth v. Jacobs, 21 Ohio St. 646; Miller
v. Anderson, 43 Ohio St. 473; Ives v. McNicoll, 59 Ohio St. 402.
Evidence of non-intercourse for more than a year, continuing to
within five months of the birth of a child, rebuts the presumption of
legitimacy. Dean v. State ex rel. Marrical, 29 Ind. 483.
The testimony of a wife is inadmissible to show the illegitimacy
of her child. Egbert v. Greenwait, 44 Mich. 245.
Where husband and wife live together, there is a presumption of
legitimacy. Egbert v. Greenwait, 44 Mich. 245.
" Non-access cannot be proved by either the husband or the wife,
whether the proceeding is one of settlement or bastardy, or to recover
property claimed as heir-at-law." Egbert v. Greenwait, 44 Mich.
246, 38 Am. Rep. 260.
Testimony against legitimacy. — A party cannot testify to any-
thing which would tend to rebut the presumption of the legitimacy
of children born in lawful wedlock and which public policy requires
to be preserved, in an action for seduction, but may testify to inter-
course with the defendant, since conception is not an essential ele-
ment to the cause of action. Rabike v. Baer, 115 Mich. 328."
New Jersey.
A bastardy Avarrant may issue even in case the woman is mar-
ried, but the nonaccess of her husband must be affirmatively shown.
State v. Overseer, 4 Zab. 533.
Maryland.
A child born in lawful wedlock is presumed to be legitimate.
Nonaccess of the husband may be proved, but not by testimony of
the mother or an adulterer. Scanlon v. Walshe, 81 Md. 118.
Nonaccess cannot be proved by either the husband or the wife,
whether the proceeding is one of settlement, or bastardy, or to
recover property claimed as heir-at-law. See Crauford v. Blackburn,
17 Md. 49, 77 Am. Dec. 323.
Pennsylvania.
Presumption of legitimacy. — After the lapse of ninety years it re-
quires very strong evidence to overcome the presumption. Pickens'
Estate, 163 Pa. 14.
" Nonaccess cannot be proved by either the husband or the wife,
whether the proceeding is one of settlement, or bastardy, or to re-
Chap. XI V.J THE LAW OF EVIDENCE. 497
cover property claimed as heir-at-law." Dennison v. Paige, 29 Pa.
420, 72 Am. Dec. 644; Com. v. Shepherd, 6 Binn. 273; Kleinhart v.
Ehlers, 38 Pa. 439; Easley v. Com., 11 Atl. 220; Com. v. Strieker,
1 Browne, xlvii, appendix; Tioga Co. v. South Creek Tp., 75 Pa. 436
(stating the reason of the rule).
If the husband has access his impotency must be clearly proved in
order to rebut the presumption stated in the text. Com. v. Wenz,
1 Ashm. 269.
Husband and wife competent to prove such facts in action be-
tween third parties. Janes' Estate, 147 Pa. 527.
There is no presumption that one who marries the mother of a
bastard child is the father of it. Janes 1 Estate, 147 Pa. 527.
Article 99.
presumption of death from seven years' absence.
A person shown not to have been heard of for seven years
by those (if any) who if he had been alive would naturally
have heard of him, is presumed to be dead unless the cir-
cumstances of the case are such as to account for his not
being heard of without assuming his death ; but there is no
presumption as to the time when he died, and the burden
of proving his death at any particular time is upon the per-
son who asserts it. 4
There is no presumption as to the age at which a person
died who is shown to have been alive at a given time, or as
^McMahon v. McElroy, 18(19, 5 Ir. Rep. Eq. 1; Hopewell v. De
Pinna, 1809, 2 Camp. 113; Nepean v. Doe, 1837, 2 S. L. C. 542,
632; Nepean v. Knight, 2 M. & W. 1837, 894, 912; R. v. Lumley,
1869, 1 C. C. R. 196; and see the caution of Lord Denman in R. v.
Harbome, 1835, 2 A. & E. at p. 544. All the cases are collected and
considered in In re Phene's Trust, 1869, 5 Ch. App. 139. The doctrine
is also much discussed in Prudential Assurance Company v. Edmonds,
1877, 2 App. Cas. 487. The principle is stated to the same effect as in
the text in Re Corbishley's Trusts, 1880, 14 Ch. Div. 846.
32
499 A DIGEST OF [Paht III.
to the order in which two or more persons died who are
shown to have died in the same accident, shipwreck, or
battle. 5
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 30, 41;.
McKelvey on Evidence, p. 67; Johnson v. Merithew, 80 Me. Ill;
Winship v. Conner, 42 N. H. 341.
First paragraph of text. Stockbridge's Case, 145 Mass. 517 ; Davie
v. Briggs, 97 U. S. 628; Hoyt v. Newbold, 45 N. J. L. 219; Cooper v.
Cooper, 86 Ind. 75; State v. Henke, 58 la. 457; University v. Harri-
son, 90 N. C. 385; Shriver v. State, 65 Md. 278; Flood v. Growney,
126 Mo. 262.
Absence alone does not raise the presumption. There must be other
circumstances, such as the failure of friends to hear from the absent
one. Sensendefer v. Pacific, etc., Ins. Co., 19 Fed. Rep. 68.
The courts should exercise caution in applying the rule of the text.
Shown v. Maclcin, 9 Lea (Tenn.), 601.
Time of death. — Sustaining text as to the rule that there is no
presumption as to time of death. 1 Am. & Eng. Encyclopaedia of Law
(1st ed.), p. 39, and cases cited.
Bigamy. — As to effect of presumption in bigamy prosecution, see
Com. v. Mash, 7 Mete. 472.
Same calamity. — Sustaining last paragraph of text. Coy v.
Leach, 8 Mete. (Mass.) 371, 372, 41 Am. Dec. 518; Fuller v. Linzee,
135 Mass. 468; Russell v. Hallett, 23 Kan. 276; Paden v. Briscoe, 81
Tex. 563. See Ehlis v. Will, 73 Wis. 445; Johnson v. Merthew, 80
Me. 111.
Loss of vessel. — A presumption that a vessel has been lost arises
after a reasonable time has passed without news of her. Clifford v.
Thomaston Mutual Ins. Co , 50 Me. 209, 79 Am. Dec. 606.
Presumption of death from absence. — Rice v. Lumley, 10 Ohio
St. 596; Stover v. Bounds, 1 Ohio St. 107, 52 Ohio St. 362; Rosen-
thal v. Mayhugh, 33 Ohio St. 155; Brent v. First, 41 Ohio St. 436;
Youngs v. Beffner, 36 Ohio St. 232; Mayhugh v. Rosenthal, 1 Cine.
Super. Ct. Rep. 492; Whalen v. State, 5 Circ. Dec. 488, 12 Ohio Circ.
Ct. 586.
SWing v. Angrave, 1860, 8 H. L. C. 183, 198; and see authorities
in last note.
Chap. XIV.] THE LAW OF EVIDENCE. 499
The wife of one who has been absent within the rule of the text
may marry again. The fact that she has sued him for divorce is
not an admission that he was not dead. Supreme Commandery v.
Everding, 20 Ohio Circ. Ct. 689, 11 Circ. Dec. 419.
Presumption rebuttable. — The presumption is rebuttable. Youngs
v. Heffner, 36 Ohio St. 232; Mayhugh v. Rosenthal, 1 Cine. Super.
Ct. Rep. 492.
Persons not heard from for seven years presumed to be dead.
Whiting v. Nicholl, 46 111. 230; Reedy v. Camfteld, 159 111. 254;
Reedy v. Millizen, 155 111. 626, 636.
If a person has been heard from within seven years the presump-
tion of death does not exist. Sinsheimer v. Skinner Mfg. Co., 165
111. 116, reversing 54 111. App. 151.
In civil cases, death may be proved by circumstantial evidence.
John Hancock, etc., Co. v. Moore, 34 Mich. 41.
Presumption of life as to a person of whom no account is given
at the end of seven years. Bailey v. Bailey, 36 Mich. 181. See, also,
People v. Eaton, 59 Mich. 559.
New Jersey.
Authorities. — Osoom V. Allen, 26 N. J. L. 388; Den v. Brown, 2
Hal. 307.
First paragraph of text. Hoyt v. Newbold, 45 N. J. L. 219.
Where plaintiffs alleged that J. B. S. had been absent from the
State for more than seven years without having been heard from,
and the defendants admitted the absence but alleged on informa-
tion and belief that he had been heard from, the burden of proving
that J. B. S. is alive is on the defendants. Smith v. Smith, 5 N. J.
Eq. 484.
The New Jersey statute was designed to furnish a presumption
as to' the time of death as well as of the fact of death after seven
years. Ex'rs of Clarke v. Canfield, 15 N. J. Eq. 119; Wambaugh v.
Schenck, Pen. 229.
Presumption is that the absent person lived through the seven
years. Ex'rs of Clarke v. Canfield, 15 N. J. Eq. 119.
Maryland.
Authorities. — Presumption of death arises after seven years' ab-
sence unheard from. Tilly v. Tilly, 2 Bland. 436. See Lee v. Hoye,
1 Gill, 188.
500 A DIGEST OF [Part III.
The presumption of death arises after seven years' absence un-
heard from, but there is no presumption that the person died with-
out issue. Chew v. Tome, 93 Md. 244; Sprigg v. Moale, 28 Md.
497.
Mere lapse of time is not enough to raise a presumption of death;
it must be shown that the person has not been heard from. Shriver
v. State, 65 Md. 278.
One is presumed to be dead' if he would be over ninety were he
living. Stevenson v. Howard, 3 H. & J. 554.
Death in common disaster. — Where several die in the same dis-
aster, there is no presumption whatever as to the order of their
death or that they died at the same time. Survivorship must be
proved by one asserting it. Cowman v. Rogers, 73 Md. 403.
Time of death. — The presumption is that the person lived through
the seven years. Scliaub v. Griffin, 84 Md. 557.
Presumption of death arises after absence for seven years un-
heard from, but there is no presumption as to the time such death
occurred, and one alleging a certain time must prove it. Schaub v.
Griffin, 84 Md. 557.
Pennsylvania.
Presumption of death arises only after the expiration of the
seven years, in the absence of any evidence of some specific peril
encountered by the party before that time. Insurance premiums
should be paid through the seven years. Mutual Benefit Co.'s Pe-
tition, 174 Pa. 1.
Aeticle 100.
* presumption of lost grant.
When it has been shown that any person has, for a long
period of time, exercised any proprietary right which might
have had a lawful origin by grant or license from the Crown
or from a private person, and the exercise of which might
and naturally would have been prevented by the persons
interested if it had not had a lawful origin, there is a pre-
* The subject of the doctrine of lost grants is much considered in
Angus v. Dalton, 3 Q. B. D. 84, 1881, 6 App. Cas. 740.
Chap. XIV.] THE LAW OF EVIDENCE. 501
sumption that such right had a lawful origin and that it
was created by a proper instrument which has been lost.
Illustrations.
(a) The question is, whether B is entitled to recover from A the pos-
session of lands which A's father and mother successively occupied
from 1754 to 1792 or 1793, and which B had occupied (without title)
from 1793 to 1809. The lands formed originally an encroachment on
the Forest of Dean.
The undisturbed occupation for thirty-nine years raises a presump-
tion of a grant from the Crown to A's father.^
(6) A fishing mill-dam was erected more than 110 years before 1861
in the River Derwent, in Cumberland (not being navigable at that
place), and was used for more than sixty years before 1861 in the
manner in which it was used in 1861. This raises a presumption that
all the upper proprietors whose rights were injuriously affected by the
dam had granted a right to erect it. 7
(c) A borough corporation proved a prescriptive right to a several
oyster fishery in a navigable tidal river. The free inhabitants of an-
cient tenements in the borough proved that from time immemorial and
claiming as of right they had dredged for oysters, within the limits of
the fishery, from Feb. 2 to Easter Eve in each year. The Court pre-
sumed a grant from the Crown to the corporation before legal memory
of a several fishery, with a condition in it that the free inhabitants of
ancient tenements in the borough should enjoy such a right.8
(d) A builds a windmill near B's land in 1829, and enjoys a free
current of air to it over B's land as of right, and without interruption
till 1860. This enjoyment raises no presumption of a grant by B of
&• right to such a current of air, as it would not be natural for B to
interrupt it.9
GGoodtitle v. Baldwin, 1809, 11 Ea. 488. The presumption was
rebutted in this case by an express provision of 20 Ch. II. c. 3, avoiding
grants of the Forest of Dean.
7 Leconfield v. Lonsdale, 1S70, L. R. 5 C. P. 657.
8 Goodman v. Mayor of Saltash, 1882, 7 App. Ch. 633 (see especially
650). Lord Blackburn dissented on the ground that such a grant
would not have been legal (pp. 651-62). See same case in 1881,
7 Q. B. D. 108, and 1880, 5 C. P. D. 431, both of which were re-
versed.
9 Webb v. Bird, 1863, 13 C. B. (N. S.) 841.
502 A DIGEST OF [Pabt III.
(e) No length of enjoyment of water, percolating through under-
ground undefined passages, raises a presumption of a grant from the
owners of the ground under which the water so percolates of a right
to the water.io
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 45-47; 2
Wharton on Evidence, sec. 348 et seq.; Sumner v. Child, 2 Conn. 628;
Hart v. Chalker, 5 Conn. 315 ; Charles River Bridge v. Warren Bridge,
7 Pick. (Mass.) 344, 448, 449; Gayetty v. Bethune, 14 Mass. 49;
Coolidge v. Learned, 8 Pick. (Mass.) 504; Fletcher v. Fuller, 120
U. S. 534; Carter v. Fishing Co., 77 Pa. 310; Tex. Hex. Ry. Co. v.
Uribe, 85 Tex. 386; Frazier v. Brown, 12 0. St. 294; Chatfield v. Wil-
son, 28 Vt. 49; Lehigh R. R. Co. v. McFarland, 43 N. J. L. 605;
Ricard v. Williams, 7 Wheat. (U. S.) 59, 109; Casey's Lessee v. In-
loes, 1 Gill (Md.), 430, 39 Am. Dec. 658; Troivbridge v. Spinning
( Wash. ) , 54 L. R. A. 205.
Title to corporeal property cannot arise from the doctrine of
implied grant. Sumner v. Child, 2 Conn. 628; Price v. Lyon, 14
Conn. 291.
Presumption of grant.— C. d- /. R. R. Co. v. Linn, 18 Ohio St. 417
(existence of road over canal company's land) ; Knoblock v. Bollin-
ger, 9 Ohio Circ. Ct. 288, o Circ. Dec. 427; Bierce v. Pierce, 15
Ohio, 520; Harmon v. Kelley, 14 Ohio, 502, 7 Am. Law Rec. 411;
Fitzpatrick v. Forsyth, 7 Am. Law. Rec. 411 (conveyance of fee) ,
Schulte v. Beineke, 4 Nisi Prius, 207, 4 Low. Dec. 250; Morris v.
Balkins, 8 Am. Law Rec. 577; Lessees of Blake v. Davis, 20 Ohio,
230; T'iers, Herring v. McDowell's Petition, Tappan, 89; Frazier v.
Broicn, 12 Ohio St. 294.
The presumption arises after a time equal to that prescribed in
the Statute of Limitations. Morrison v. Balkins, 8 Am. Law Rec.
.577.
If the existence of a defective grant is proved, no grant can be
presumed in order to cure the defect. Roads v. Symmes, 1 Ohio,
281. 316.
A patent from the Federal government for lands will not be pre-
Bumed. Wallace's Lessees v. Minor, 7 Ohio (pt. 1). 249.
w Chasemore v. Richards, 1859, 7 H. L. C. 349.
Chap. XIV.J THE LAW OF EVIDENCE. 503
A deed will not be presumed from possession for less than the
statutory period. Rosa v. Corwin, 3 Ohio, 407.
Unless unaccompanied by other circumstances. Coarcier d Re-
vises v. GraLam, 1 Ohio, 349.
Presumption rebuttable. — The presumption is rebuttable. Wal-
lace's Lessees v. Minor, 6 Ohio, 366, 7 Ohio (pt. 1), 249.
Underground waters. — The doctrine of the text does not apply to
underground waters eventually issuing as a spring. Frazier v.
Brown, 12 Ohio St. 294.
New Jersey.
Authorities. — Lehigh R. R. Co. v. McFarland, 43 N. J. L. 605.
Title by adverse possession arises out of a presumption of a lost
grant. Railroad Co. v. McFarland, 30 X. J. Eq. 180, 31 X. J. Eq.
706.
A presumption of the existence of a deed may be raised by re-
citals in later ones. Fuller ads. Den., 20 X. J. L. 61.
As to the circumstances sufficient to induce the jury to presume
the existence of a deed, see Den. v. Johnson, 2 Hal. 6.
Maryland.
Authority. — Casey's Lessee v. Inloes, 1 Gill, 430, 39 Am. Dec. 658.
A conveyance may be presumed from great length of possession
and the payment of taxes. Cheney v. Watkins, 1 H. & J. 527. See
Cockey v. Smith, 3 H. & J. 20.
Pennsylvania.
Authority. — Carter v. Fishing Co., 77 Pa. 310.
Illustration (e). — Percolating waters. Wheatly v. Baugh, 25 Pa.
528.
There is no presumption that an order of court was made au-
thorizing a certain conveyance because it would be a matter of
record and its loss must be proved. Baskin v. Seechrist, 6 Pa. 154.
Presumption of a grant of a right of way from long use and
other circumstances. Lewis v. Carstairs, 6 Whart. 193.
504 A DIGEST OF [PabtIIL
Article 101.*
peesumption of regularity and of deeds to complete
TITLE.
When any judicial or official act is shown to have been
done in a manner substantially regular, it is presumed that
formal requisites for its validity were complied with.
When a person in possession of any property is shown to
be entitled to the beneficial ownership thereof, there is a
presumption that every instrument has been executed which
it was the legal duty of his trustees to execute in order to
perfect his title. 11
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 20, 38, n.,
40, n.; Perry on Trusts (4th ed.), sec. 349.
Regularity. — State v. Potter, 52 Vt. 33 ; State v. Main, 69 Conn.
140, 144; Brownell v. Palmer, 22 Conn. 107, 119; Ward v. Metro-
politan Life Ins. Co., 66 Conn. 239; Gregory v. Brooks, 37 Conn. 372;
Perry v. Reynolds, 53 Conn. 535 ; Booth v. Booth, 7 Conn. 367 ; Cog-
gill v. Botsford, 29 Conn. 447; Piatt v. Grover, 136 Mass. 115;
Murray's Heirs v. Erie, 59 Pa. 223; Nofire v. U. S., 164 U. S. 657;
Schell's Excrs. v. Fauche, 138 U. S. 562; Hogue v. Corbett, 156 111.
540; State v. Williams, 99 Mo. 291; Sinclair v. Learned, 51 Mich.
335.
First proposition of text. — Rumsey v. N. Y. & N. E. R. R. Co. r
130 N. Y. 88; Wood v. Morehouse, 45 N. Y. 368; Sioarthout
v. Ranier, 143 N. Y. 499, 504; Kent v. Quicksilver Mining Co., 78-
* See Note XXXVII. , and Macdougall v. Furrier, 1830, 2 Dow. &
CI. 135, 433. R. v. Cresswell, 1876, 1 Q. B. D. (C. C. R.) 446, is a
modern illustration of the effect of this presumption.
» Doe d. Hammond v. Cooke, 1829, 6 Bing. 174, 179.
Chap. XIV.] THE LAW OF EVIDENCE. 505
N. Y. 159, 183; Hilton v. Bender, 69 N. Y. 75; Jackson v. Shaffer,
11 Johns. 513; Wood v. Chapin, 13 N. Y. 509-516, 67 Am. Dec. 62.
Until the contrary appears it will be assumed that public officers
have obeyed the law. People v. Dalton, 61 N. Y. Supp. 263, 46 App.
Div. 264.
If a public officer has no recollection of the circumstances of a par-
ticular case, he may testify as to the routine of business in his of-
fice. People v. Oyer and Terminer of New York, 83 N. Y. 436.
Instances. — An officer selling property under an execution is pre-
sumed after a long period of time to have complied with the re-
quirements of the statute. Leland v. Cameron, 31 N. Y. 115.
In the absence of proof to the contrary, a public officer is pre-
sumed to have done that, the omission of which would constitute a
neglect of duty. Hence, it is presumed that a sheriff properly posted
notices of a sale on execution. Wood v. Morehouse, 45 N. Y. 368,
affirming 1 Lans. 405.
Regularity of official acts. — Ballance v. Underhill, 3 Scam. 453;
Todemier v. Aspinwall, 43 111. 401 ; Shattuck v. People, 4 Scam. 478 ;
Governor v. Ridgway, 12 111. 14; Clancy v. Elliott, 14 111. 456; Buck-
master v. Job, 15 111. 328; Dyer v. Flint, 21 111. 80; Hogue v. Corbit,
156 111. 540; Doyle v. Wiley, 15 111. 576 (in laying out land) ; Chi-
cago v. Johnson, 53 111. 91 (laying of pavement) ; Dempster v. West,
69 111. 613 (mortgage sales) ; Harris v. Lester, 80 111. 307 (proceed-
ings of courts) ; Graves v. Coldwell, 90 111. 012 (proceedings of
courts) ; Anthony v. International Bank, 93 111. 225 (seal upon
copies) ; Duncan v. Fletcher, Breese, 252 (administering oath to
referee) ; Lattin v. Smith, Breese, 284 (acts of magistrate) ; Van-
landingham v. Lowery, 1 Scam. 241 (proceedings by referee) ; Waldo
v. Averett, 1 Scam. 487 (appeal bonds) ; Archer v. Spillman, 1 Scam.
553.
As to this presumption with reference to legal proceedings, see
Mulford v. Shepard, 1 Scam. 583; Wilcox v. Woods, 3 Scam. 51
Ballance v. Samuel, 3 Scam. 381; Singleton v. W afford, 3 Scam. 577
Russell v. Whiteside, 4 Scam. 7; Burgwin v. Babcock, 11 111. 28
Holmes v. People, 5 Gilm. 478; Eaton v. Graham., 11 111. 619; Cody
v. Hough, 20 111. 43; Cook v. Skelton, 20 111. 107; Cook v. Renick,
19 111. 598; White v. People, 81 111. 323; City of Virginia v. Hall,
96 111. 278; Allen v. People, 77 111. 484; Maxcy v. Williamson
County, 72 111. 207.
506 A DIGEST OF [Past III.
The presumption of regularity extends to the action of jury com-
missioners. Regent v. People, 96 111. App. 189.
There is a presumption that legal proceedings are regular. Austin
v. Austin, 43 111. App. 488.
Proceedings with reference to highways are presumed to be regular.
Shields v. Roos, 158 111. 214.
Recitals in sheriff's deeds are prima facie correct. Gardner v.
Eberhart, 82 111. 316.
It is presumed that a referee was sworn according to law. Story
v. Dcmarne, 77 111. App. 74.
A sheriff's certificate of sale without a judgment is no evidence
of title. Curtis v. Sicearingen, Breese, 160.
The presumption that officials do their duty does not extend to
officials of corporations. T. C. Gas Works v. People, 156 111. 387.
That one was an officer is to be presumed from his habitually
acting in that capacity. Morrell v. People, 32 111. 499.
Other presumptions. — Facts from which presumptions arise must
be proven by direct evidence. Morris v. /. & St. L. R. R. Co., 10
Brad. 389.
As to charging the jury concerning presumptions, see Illinois
Cent. R. R. Co. v. Cragin, 71 111. 177.
Possession. — Possession of land is prima facie evidence of owner-
ship. Frank v. Palmer, 65 111. App. 124.
The ownership of a railroad may be presumed from its use. Illi-
nois Cent. R. It. Co. v. Mills, 42 111. 407; P., C. & St. L. R. R. Co. v.
Kunston, 69 111. 103; T., P. & \Y. Ry. Co. v. Arnold, 49 111. 17S.
The possession of personal property is prima facie evidence of
ownership. Roberts v. Haskall, 20 111. 59.
Where one is in possession of an article of personal property and
mortgages it, it will be presumed that he was the owner of it.
Downey v. Arnold, 97 111. App. 91.
The fact that a note is in one's possession is some evidence of
ownership. Henderson v. Davisson, 157 111. 379.
A deed found in the grantee's possession is presumed to have been
delivered. Harshberger v. Carroll, 163 111. 636.
Title may be presumed from possession. Keith v. Keith, 104 111.
397; Doty v. Burdick, 83 111. 473; Herbert v. Herbert, Breese, 278;
Brooks v. Bruyn, 18 111. 539; Burnap v. Cook, 32 111. 168; Farwell
v. Meyer, 35 111. 40.
Chap. XIV.] THE LAW OF EVIDENCE. 507
The ownership of corporation securities is presumed from posses-
sion. Higgins v. Lansingh, 154 111. 301.
Presumption of guilt from possession of stolen goods. Conkright
v. People, 35 111. 204.
As to presumption under the bucket shop act, see Hurd's Rev.
Stat., chap. 38, sec. 137c, p. 592.
Possession of stolen property evidence of theft. Jupitz v. People,
34 111. 516; Conkright v. People, 35 111. 204; Andrews v. People, 60
111. 354; Comfort v. People, 54 111. 404.
As to evidence. — The failure to call a natural witness is an un-
favorable circumstance. Lebanon Coal & Machine Assn. v. Zerwick,
77 111. App. 486.
Presumption for nonproduction of evidence (letters). Law v.
Woodruff, 48 111. 399.
Presumption from the destruction or fabrication of evidence. Win-
chell v. Edwards, 57 111. 41; Downing v. Plate, 90 111. 268; C. C. R.
R. Co. v. McMahon, 103 111. 4S5.
There is a presumption that papers destroyed were against the
spoliator. Tartar v. Keller, 167 111. 129.
Matters of law. — The presumption is that the common law pre-
vails in another State as interpreted by the courts of this State.
Scaling v. Knollin, 94 111. App. 443.
Effect of statute upon common law. Cadwallader v. Harris, 76
111. 370.
Presumption as to foreign laws. Crouch v. Hall, 15 111. 263;
Tatman v. Strader, 23 111. 493, 495.
It is presumed that the common law is in force in another State.
Tan Ingen v. Brabrock, 27 111. App. 401.
A common-law assignment in another State will be presumed to
be regular. Thompson Co. v. Whitehead, 185 111. 454, 56 N. E. 1106,
affirming 86 111. App. 76.
It will not be presumed that a chattel mortgage, fraudulent at the
place of trial, is valid by the law of the State where it was made.
Shannon v. Wolf, 173 111. 253, 50 N. E. 682, reversing 6S 111. App.
586.
Payment. — Payment is presumed after twenty-seven years. Lang-
worthy v. Baker, 23 111. 484; McCormicl; v. Evans, 33 111. 327.
A receipt in full is prima facie evidence of payment. Walrath v.
Norton. 5 Gilm. 437: Marston v. Wilcox. 1 Scam. 271. Compare
Bartholomew v. Bartholomew, 24 111. 199; Fitzsimmons v. Allen, 39
111. 440.
608 A DIGEST OF [Pabt III.
Identity. — As to identity. Lee v. Mendel, 40 111. 359; Heacock v.
Lubukee, 108 111. 641; Brown v. Metz, 33 111. 339; Wickersham v.
People, 1 Scam. 128.
Where father and son bear the same name, the presumption is that
the father is intended. Doty v. Doty, 159 111. 46.
Honesty. — There is a presumption that men are honest until the
contrary is proved. Diefenthaler v. Hall, 96 111. App. 639.
Continuity. — The relation of common carrier, once proved, is pre-
sumed to exist. P. & P. Union Ry. Co. v. V. S. Roll. S. Co., 136 111.
643, 654.
Sanity. — There is a presumption of sanity. Stevens v. Shanna-
han, 160 111. 330; Fisher v. People, 23 111. 283; Hopps v. People, 31
111. 385, 394; Lilly v. Waggoner, 27 111. 395; Titcomb v. Vantyle,
84 111. 371; Snow v. Benton, 28 111. 306.
The condition of mind long before a will was made is irrelevant.
Dickie v. Carter, 42 111. 376.
Every one free. — That every one is free. Rodney v. Illinois Cent,
R. R. Co., 19 111. 42; Bailey v. Cromwell, 3 Scam. 71; Kinney v.
Cook, 3 Scam. 232.
Conveyance to wife. — There is presumption that a conveyance by
husband to wife is by way of gift. Pool v. Phillips, 167 111. 432.
Other presumptions. — Jackson v. Cummings, 15 111. 449; Korah v.
Ottawa, 32 111. 121 ; People v. Hatch, 33 111. 9 ; R., R. I. & St. L. R. R.
Co. v. Lewis, 58 111. 49; Illinois Cent. R. R. Co. v. Eouck, 72 111.
285; C, B. & Q. R. R. Co. v. Van Patten, 74 111. 91.
That one intends the natural results of his acts. — People v.
Sweeney, 55 Mich. 586; Allison v. Chandler, 11 Mich. 542; People
v. Potter, 5 Mich. 1 ; People v. Scott, 6 Mich. 287 ; People v. Getch-
ell, 6 Mich. 497; Schaible v. Ardner, 98 Mich. 70; People v. Resh,.
107 Mich. 251.
New Jersey.
Presumption of regularity. — Railroad Co. v. Little, 41 N. J. Eq.
519.
Regularity of taking a deposition. Neio Jersey Exp. Co. v. Nichols?
32 N. J. L. 166, 33 N. J. L. 434.
Presumed that an oath was administered regularly. Coxe v.
Field. 1 Green, 215: Williamson v. Carroll, 1 Harr. 217.
Judicial proceedings. — Judicial proceeding of another State pre-
sumed to be valid and regular. Royal Arcanum v. Carley, 52 N. J.
Eq. 642.
€uap. XIV.] THE LAW OF EVIDENCE. 50'J
Presumption is that a judgment was entered at the earliest hour
of the day in which it could be entered in due course. Hunt v.
tiwayze, 55 N. J. L. 33.
In rendering a decree the court is presumed to have proceeded
according to law, and the burden of proof is on the impeaching
party. Eldridge v. Lippincott, Coxe, 397 ; Hyer v. Morehouse, Spen.
125.
Presumption that an attorney has authority to appear. Xorris
v. Douglass, 2 South. 817; Railroad Co. v. Greenwich, 25 N. J. Eq.
565; Ward v. Price, 25 N. J. L. 225.
Every reasonable presumption is in favor of the validity of an
award. Thomas v. W. Jersey R. Co., 24 N. J. Eq. 568.
Regularity of the proceedings of a court with jurisdiction is pre
sumed. Maxwell v. Pittenger, 3 N. J. Eq. 156; Van Kleek v. O'Han-
lon, 21 N. J. L. 582; Reeves v. Townsend, 22 N". J. L. 396.
Presumption that what ought to be done has been done does not
apply in case of persons and tribunals having limited or merely
statutory jurisdiction. Snediker v. Quick, 13 N. J. L. 306.
Presumptions arising from lapse of time. — Presumed that sur-
veyors acted with ordinary skill and care when oral evidence has
become impossible by lapse of time. Scott v. Yard, 46 N. J. Eq. 79.
Surveys which have stood upon the records of the proprietors for
nearly 200 years are conclusively presumed to have been approved
by the proprietors. Jennings v. Burnham, 56 N. J. L. 289.
After a highway has been used for a long time the presumption
is that those who surveyed it acted properly. Taintor v. Morris-
town, 33 N. J. L. 57; Taintor v. Morristown, 19 N. J. Eq. 46; Ward
v. Folly, 2 South. 482; Bodine v. Trenton, 36 N. J. L. 198; State v.
Lewis, 2 Zab. 564.
Presumption that title is extinguished when no entry is made in
twenty years does not exist in favor of one who never himself exer-
cised any dominion over the property. Roll v. Rea, 57 N. J. L.
647.
Mortgage presumed to be paid after a lapse of twenty years.
Magee v. Bradley, 54 N. J. Eq. 326 ; Stimis v. Stimis, 54 N\ ,T. Eq.
17.
Presumption after twenty years that a legacy has been paid.
Magee v. Bradley, 54 N. J. Eq. 326.
Presumption 13 that tax has been paid after a lapse of twenty
years. In re Commissioners of Trenton, 17 N. J. L. J. 23.
510 A DIGEST OF [Pabt III.
Maryland.
The proceedings of a court of general jurisdiction are presumed
to be regular. Schultze v. State, 43 Md. 295; Hayes v. Brotzman,
46 Md. 519.
The presumption is that a trustee has faithfully performed the
trust. Shilknecht v. Eastbum, 2 G. & J. 115.
Pennsylvania.
Regularity. — Hurray's Heirs v. Erie, 59 Pa. 223.
If a court has jurisdiction the regularity of its proceedings is
presumed. Ohio v. Hinchman, 27 Pa. 479; Iddings v. Cairns, 2
Grant, 88.
Presumed that an order staying an execution was properly
granted. Cake v. Cake, 192 Pa. 550.
It is presumed that officers act in accordance with duty and
within the scope of their authority only when they act as such
officers. Murphy v. Chase, 103 Pa. 260.
Presumption of payment when note has come into hands of tli£
maker. Connelly v. McKean, 64 Pa. 113.
The report of public officers appointed to appraise and survey
lands is prima facie evidence of the regularity of their proceedings,
even though the report is not as complete as it should be. Alle-
gheny v. Nelson, 25 Pa. 332.
Aeticle 102.*
estoppel, by conduct.
When one person by anything which he does or says, or
abstains from doing or saying, intentionally causes or per-
mits another person to believe a thing to be true, and to act
upon such belief otherwise than but for that belief he would
have acted, neither the person first mentioned nor his rep-
resentative in interest is allowed, in any suit or proceeding
* See Note XXXVIII.
Chap. XIV.] THE LAW OF EVIDENCE. 511
between himself and such person or his representative in
interest, to deny the truth of that thing.
When any person under a legal duty to any other person
to conduct himself with reasonable caution in the transac-
tion of any business neglects that duty, and when the person
to whom the duty is owing alters his position for the worse
because he is misled as to the conduct of the negligent per-
son by a fraud, of which such neglect is in the natural
course of things the proximate cause, the negligent person
is not permitted to deny that he acted in the manner in
which the other person was led by such fraud to believe him
to act.
Illustrations.
(a) A, the owner of machinery in B's possession, which is taken in
execution by C, abstains from claiming it for some months, and con-
verses with C's attorney without referring to his claim, and by these
means impresses C with the belief that the machinery is B's. C sells
the machinery. A is estopped from denying that it is B's. 12
(6) A, a retiring partner of B, gives no notice to the customers of the
firm that he is no longer B's partner. In an action by a customer, he
cannot deny that he is B's partner.13
(c) A sues B for a wrongful imprisonment. The imprisonment wa9
wrongful, if B had a certain original warrant; rightful, if he had only
a copy. B had in fact a copy. He led A to believe that he had the
original, though not with the intention that A should act otherwise
than he actually did. B may show that he had only a copy and not the
original. 14
(d) A sells eighty quarters of barley to B, but does not specifically
appropriate to B any quarters. B sells sixty of the eighty quarters to
C. C informs A, who assents to the transfer. C being satisfied with
this, says nothing further to B as to delivery. B becomes bankrupt.
A cannot, in an action by C to recover the barley, deny that he holds
MPickard v. Sears, 1837, 6 A. & E. 469, 474.
13 (Per Parke, B.) Freeman v. Cooke, 1848, 2 Ex. 663.
n Howard v. Hudson, 1853, 2 E. & B. 1.
512 A DIGEST OF [PabtIII.
for C on the ground that, for want of specific appropriation, no prop-
erty passed to B.15
(e) A signs blank cheques and gives them to his wife to fill up as she
wants money. A's wife fills up a cheque for £50 2s. so carelessly that
room is left for the insertion of figures before the 50 and for the inser-
tion of words before the " fifty." She then gives it to a clerk of A's to
get it cashed. He wrote 3 before 50 and " three hundred and " before
" fifty." A's banker pays the cheque so altered in good faith. A
cannot recover against the banker.it>
(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 <igent, un-
less such admission or conversation with the said deceased agent
was had or made in the presence of a surviving agent or agents of
such adverse party, and then only except where the conditions are
such that under the provisions of sections 2 and 3 of this act he
would have been permitted to testify if the deceased person had
been a principal and not an agent. Hurd's Rev. Stat., chap. 51,
sec. 4, p. 859.
The parties to bastardy proceedings may testify in Illinois. See
Hurd's Rev. Stat,, chap. 17, sec. 6, p. 204.
The adverse party may be compelled to testify in the same State.
Hurd's Rev. Stat., chap. 51, sec. 6, p. 860.
If a party desires the testimony of the adverse party, he must
subpoena him. Vennum v. Vennum, 56 111. 430.
A party in interest may be compelled to testify against himself.
Brooks v. McKinney, 4 Scam. 309.
One named as a party defendant is not necessarily an adverse
party to the plaintiff. 197 111. 298, 301, 64 N. E. 324.
Party as witness in will contest. 197 111. 298, 301, 64 N. E. 324.
The habits of a party are admissible on questions of negligence.
Swift v. Zencick, 88 111. App. 558.
One cannot testify in his own behalf when the adverse party de-
fends as executor. Johnson v. Cunningham, 56 111. App. 593.
The common-law disqualification still exists as to the defense in
suits brought by administrators. Thompson v. Wilson, 56 111. App.
159.
Husband and wife. — At common law, the husband or wife was not
a competent witness for or against the other. Keep v. Griggs, 12
Brad. 511; Waddams v. Humphrey, 22 111. 661; Rea v. Tucker, 51
111. 110.
The wife may be a witness when her husband may. Illinois Cent.
R. R. Co. v. Taylor, 24 111. 323.
Chap. XV.] THE LAW OF EVIDENCE. 525
A husband or wife cannot testify where the adverse party is an
executor. Harriman v. Sampson, 23 111. App. 159 ; Treleaven v.
Dixon, 119 111. 548, 550.
A husband is not a competent witness for his wife who has sued
an executor. Mann v. Forein, 166 111. 446.
A husband cannot testify for or against his wife upon her trial
for adultery. Miner v. People, 58 111. 59.
In malicious prosecution, the wife of the plaintiff is incompetent.
Mitchinson v. Cross, 58 111. 366.
A wife cannot testify in behalf of her husband in a suit to cancel
a deed on the ground of duress. Rendleman v. Rendleman, 156
111. 568.
The wife of the defendant is not a competent witness for him in
a slander suit. Hanover v. Hanover, 78 111. 412.
Ill a suit by an executor, the widow cannot testify for the plain-
tiff in reference to a conversation between the defendant and the
deceased. Reeves v. Herr, 59 111. 81.
In litigation respecting the separate estate of the wife, the hus-
band is a competent witness for her. Waggonseller v. Rexford, 2
Brad. 455; Frank v. Eggleston, 92 111. 515; Wing v. Goodman. 75 111.
159; Flynn v. Gardner, 3 111. App. 253; Mueller v. Rebham, 94
111. 142; Johnson v. McGregor, 157 111. 350; Pfissing v. Hciter, 91
111. App. 407 ; Toler v. Bishop, 84 111. App. 278 ; Best v. Jenks, 123
111. 447, 453; Stout v. Ellison, 15 111. App. 222.
Under section 5 of the act relating to evidence, the husband and
wife may be witnesses in behalf of or against each other, except as
therein otherwise provided. Mueller v. Rebham, 94 111. 142;
Cordery v. Hughes, 6 Brad. 401; Smith v. Long, 106 111. 485; Keep
v. Griggs, 12 Brad. 511; Eads v. Thompson, 109 111. 87.
In a suit by a wife for money lost by her husband at gaming, the
husband is a competent witness. Johnson v. McGregor, 55 111. App.
530.
As to corroboration of the husband's testimony by the wife in a
suit in which he was not interested, see L. A. & N. C. Gravel Road
v. Madans, 102 111. 417.
A wife is a competent witness to prove the consideration of a
deed made to her by the husband. Payne v. Miller, 103 111. 442.
A wife is not competent as a witness for her husband in arbitra-
tion proceedings under Rev. Stat., chap. 10, sees. 16 and IS. Seaton
v. Kendall, 174 111. 410. 49 N. E. 561.
526 A DIGEST OF [Part III.
Where the adverse party sues the defendant as the representative
of a deceased person, a husband and wife cannot testify for or
against each other. Mann v. Forein, 69 111. App. 318.
A wife may testify for or against her husband as to any matter
as to which she acts as his agent. Illinois Cent. R. R. Co. v. Mess-
nard, 15 111. App. 213; Mitchell v. Hughs, 24 111. App. 308.
The wife cannot testify in a suit of trespass brought against her
husband, when offered as a witness in his behalf. Wolf v. Van-
housen, 55 111. App. 295.
A wife, who is a party, is a competent witness for herself. Kelly
v. Hale, 59 111. App. 568.
If a husband is interested, a wife is not competent. McGrath v.
Miller, 61 111. App. 497.
Divorced wife is incompetent to testify as to the impotency of
her former husband. Griffith v. Griffith, 162 111. 368, reversing 55
111. App. 474.
In a suit to partition land of a deceased husband, the widow is
competent as to facts occurring after his death. Gillespie v. Gilles-
pie, 159 111. 84.
As to the testimony of husband and wife under the statute, see
Wilcoxon v. Read, 95 111. App. 33.
As to the testimony of husband and wife in actions against them,
see Vercler v. Jansen, 96 111. App. 328.
As to divorced wife as witness, see Maher v. Title Guarantee &
Trust Co., 95 111. App. 365.
Adverse party as witness. — The adverse party may be examined
as a witness. Smith v. Rosenbaum, 19 Ind. 256.
If the adverse party fails to attend as a witness, judgment may
be entered against him. Belton v. Smith, 45 Ind. 291; Nelson v.
Neely, 63 Ind. 194.
Or may be punished for contempt. Chaffin v. Brownfield, 88 Ind.
305.
The adverse party may be cross-examined in his own behalf.
Mosier v. St oil, 119 Ind. 244.
In partition suits between heirs, the party is not competent un-
less he is required by the court to testify, or has been called by the
other party. Dille v. Webb, 61 Ind. 85.
As to executors as witnesses, see Shirts v. Rooker, 21 Ind. App.
420.
Chap. XV.] THE LAW OF EVIDENCE. 527
Objection for incompetency. — The ground of objection to the com-
petency of a witness must be pointed out to the court, or the over-
ruling of the objection cannot be assigned for error. Whitewater
Valley Canal Co. v. Doic, 1 Ind. 141.
If the objection goes to the competency of a witness himself, it is
not necessary to state what counsel expects to prove by him. State
v. Thomas, 111 Ind. 515.
New Jersey.
Disqualification for interest abolished. — G. S. 1895, " Evidence," 3.
Parties to an action are competent when called by the adverse
party. G. S. 1895, " Evidence,' - 2, 6.
Crime. — Conviction of crime no longer disqualifies. G. S. 1895,
I Evidence," 1.
Youth.— Whether a boy of twelve years is competent to testify is
largely in the discretion of the trial court; boy held competent in
this case. State v. Cracker, 65 N. J. L. 410.
Atheists. — Percey v. Powers, 51 N. J. L. 432; Van Pelt v. Van Pelt,
Pen. 657 ; Smith v. Drake, 23 N. J. Eq. 302.
Witness not incompetent because he is not an orthodox believer.
miller v. Miller, 1 Green, 139.
Attorneys. — The attorney conducting the case is not an incompe-
tent witness. Roston v. Morris, 25 N. J. L. 173.
Judge. — A justice cannot be a witness in his own court. Corlies
v. Vannote, 1 Hal. 324; Outcalt v. Rankin, 2 Green, 33; Paterson
v. Schenck, 3 Green, 434 ; McCormick v. Brookfield, 1 South. 69.
Lack of mental capacity. — Den. v. Van Cleve, 2 South. 589, 653;
Donnelly v. State, 26 N. J. L. 601, 620; Van Pelt v. Van Pelt, Pen.
657 : James v. Stonebanks, Coxe, 227.
Husband and wife. — Husband and wife now competent and com-
pellable witnesses in any civil action to which either is a party.
Foley v. Loughran, 60 N. J. L. 464; Lippincott v. Wikoff, 54 N. J.
Eq. 107.
Objections because of incompetency. — Objection to a witness on
ground of incompetency ought to be made when he is sworn. Den.
v. Ashmore, 2 Zab. 261 ; Chambers v. Hunt, 2 Zab. 552 ; Coil v. Wal-
lace, 4 Zab. 291; Den. v. Geiyer, 4 Hal. 225; Graham v. Berryman,
19 N. J. Eq. 29. 21 N. J. Eq. 370; Price v. Ward. 2 Hal. 127.
Cross-examining a witness does not waive an objection to him
on the ground of incompetency. Meeker v. Boylan, 28 N. J. L. 274;
Ogden v. Robertson, 3 Green, 124.
528 A DIGEST OF [Pabt III.
Objection to the competency of a witness may be waived. Boone
v. Ridgway, 29 N. J. Eq. 543. And it is regarded as waived unless
made promptly. Monfort v. Roivland, 38 N. J. Eq. 181, 40 N. J.
Eq. 281; Fennimore v. Childs, 1 Hal. 318.
A court should sometimes of its own motion disregard incompe-
tent evidence. Sherman v. Lanier, 39 N. J. Eq. 249.
Transactions with one deceased. — Under the revision of 1900 par-
ties to a suit are competent witnesses notwithstanding their inter-
est, but if either sues as the representative of a deceased person
the other cannot testify as to transactions had with such deceased,
until such deceased's representative testifies to some transaction
with his deceased. This rule applies even where both parties are
acting in such representative capacity. Lodge v. Hulings, 64 N. J.
Eq. 761. See Haines v. Watts, 55 N. J. L. 149; Bell v. Samuels, 60
N. J. L. 370; Thompson v. West, 56 N. J. Eq. 660.
General rule where one party is acting in a representative capac-
ity. Montgomery v. Simpson, 31 N. J. Eq. 1; Larison v. Polhemus,
36 N. J. Eq. 506; Baker v. Galpin, 39 N. J. Eq. 491; Woolverton
v. Van Syckel, 57 N. J. L. 393; Dicker son v. Payne, 66 N. J. L. 351;
Greenwood v. Henry, 52 N. J. Eq. 447; McCartin v. McCartin, 45
N. J. Eq. 265; Christopher v. Wilkins, 64 N. J. Eq. 354.
Heirs-at-law are representatives within the meaning of the stat-
ute. Colfax v. Colfax, 32 N. J. Eq. 206; Joss v. Alohn, 55 N. J. L.
407.
Where defendant dies during the pendency of an action the
plaintiff thereupon becomes an incompetent witness as to transac-
tions with the defendant. Osborne v. O'Reilly, 43 N. J. Eq. 647;
reversing S. C, 42 N. J. Eq. 467; Beckhaus v. Ladner, 48 N. J. Eq.
152, 50 N. J. Eq. 487.
If after one party has testified in an action the opposite party
dies, the evidence so given remains competent. Marlatt v. War-
wick, 18 N. J. Eq. 108. 19 N. J. Eq. 439.
Having proved a contract with deceased, the plaintiff is there-
after a competent witness to show his performance thereof not in
the presence of deceased. Provost v. Robinson, 58 N. J. L. 222.
When a party sues or is sued in a representative capacity, such
party's husband or wife is a competent witness to transactions be-
tween such party and the deceased. Foley v. Loughran, 60 N. J. L.
464; Rairdon v. Sampson, 67 N. J. L. 346.
Chap. XV.] THE LAW OF EVIDENCE. 529
When the suit is by a corporation against the representative of a
deceased person, the officers of the corporation are competent wit-
nesses as to transactions with deceased. New Jersey Trust Co. v.
Camden Safe D. Co., 58 N. J. L. 196.
In an action against the estate of a deceased person by the as-
signee of certain contract rights, the assignor is a competent wit-
ness as to his transactions with the deceased. Cullen v. Woolver-
ton, 65 N. J. L. 279.
Statute. — Disqualification of a party when the opposite party is
acting in a representative capacity. G. S. 1895, " Evidence," 3, 4,
12, 53.
Maryland.
Interest and crime. — Disqualification because of interest or crime
is now removed. P. G. L. 1888, art. 35, sec. 1. But such interest
or crime may be proved to affect the credibility of the witness.
P. G. L. 1888, art. 35, sec. 5.
Conviction for perjury still disqualifies. P. G. L. 1888, art. 35.
sec. 1.
Youth. — It is for the trial court to determine whether a young
child is a competent witness. Freeny v. Freeny, 80 Md. 406.
Atheist. — At common law, one who does not believe in God is an
incompetent witness. Arnd v. Amling, 53 Md. 192.
Husband and wife. — A wife is a competent witness in an action by
her to set aside a marriage contract as a forgery. Classen v. Clas-
sen, 57 Md. 510.
Husband and wife are competent witnesses in a suit to declare
the marriage void, he Brun v. he Brun, 55 Md. 496.
One claiming to be the widow of the deceased is not competent
as to the fact of marriage. Redgrave v. Redgrave. 38 Md. 93.
Interest.— Authorities as to disqualification on the ground of in-
terest. Highberger v. Stiffler, 21 Md. 350; Insurance Co. v. Crane, 16
Md. 260; Turnpike Co. v. State, 19 Md. 239.
Legatees under a will are competent witnesses in regard to it.
Harris v. Pue, 39 Md. 535. And so are heirs-at-law petitioning for
a share in the distribution of an estate. Jones v. Jones. 36 Md.
447.
When one party to a transaction is dead or insane. — See Code,
art. 35, sec. 2.
The surviving party is incompetent to testify as to such transac-
tion. Wright v. Gilbert, 51 Md. 146; Robertson v. Moioell, 66 Md.
24
630 A DIGEST OF [PajjtIII.
530; Webster v. Le Compte, 74 Md. 249; Gunther v. Bennett, 72
Md. 384; Staudford v. Horwitz, 49 Md. 525; Johnson v. Heald,
33 Md. 352; Wienecke v. Ar&in, 88 Md. 182.
A stockholder in a corporation is not incompetent in regard to a
contract of the corporation, even though the other party thereto
be dead. Downes v. Railroad Co., 37 Md. 100.
When a corporation contracts with a person, the agent of the
corporation who negotiated the contract is a competent witness
even though the other party is dead or insane. Flach v. Gotts-
chalk Co., 88 Md. 368.
The death of the agent of a corporation or firm who acted for
it in making a contract does not render the other party incompetent.
South Balto., etc., Co. v. Muhlbach, 69 Md. 395; Spencer v. Traf-
ford, 42 Md. 1.
The surviving party is incompetent only as to a contract or
cause of action in issue and on trial. Wright v. Gilbert, 51 Md.
146; Leiter v. Grimes, 35 Md. 434; Smith v. Wood, 31 Md. 293.
Devisees under a will do not have such an adverse interest as to
be incompetent to testify against an executor on his claim for
services. Bantz v. Bantz, 52 Md. 686.
A witness is not incompetent in case any of the several parties
with whom he made a contract is living. Simmons v. Haas, 56 Md.
153.
The death of one partner does not disqualify the other partners
as witnesses concerning contracts of the firm. Hardy v. Ches. Bank,
51 Md. 562.
But they are disqualified in a suit for an accounting brought by
a representative of the deceased partner. Sangston v. Hack, 52 Md.
173. See McKaig v. Hebb, 42 Md. 227.
The death of one party after the testimony of the other is taken
does not render such testimony incompetent. Armitage v. Snowden,
41 Md. 119.
On the question of which of two mortgages is prior one mortgagee
is not incompetent by reason of the death of the other. Swartz v.
Chickering, 58 Md. 290.
An assignee of a life insurance policy is competent to testify as
to the consideration for such assignment from the deceased aa
against another assignee. Diffenbach v. Vogeler, 61 Md. 370.
But the surviving party to a written contract is competent to
prove its loss. AM v. AM, 71 Md. 555.
Chap. XV.] THE LAW OF EVIDENCE. 531
In an action for specific performance of a contract, made by one
now dead, to convey a house, the plaintiff is not a competent wit-
ness. Polk v. Clark, 92 Md. 372.
One is not rendered incompetent to testify as to a contract by
reason of the death of the other party to it, in case the negotia-
tions were with an agent of such deceased party and the agent is
living and competent. Warth v. Brafman, 85 Md. 674.
Surviving party. — Disqualification on the ground that the other
party to the suit or contract is dead or insane. P. G. L. 1888, art.
35, sec. 2, and chap. 495, Laws of 1902.
Time for objecting. — An objection to a witness on the ground of
incompetency is in time if made after he was sworn but before ex-
amination. ~\Yard v. Leitch, 30 Md. 326.
Pennsylvania.
Disqualification for interest removed. — Pepper & Lewis' Digest of
Laws, " Witnesses," sec. 8.
Every witness is presumed to be competent. Pringle v. Pringle,
59 Pa. 281; McClelland v. West, 70 Pa. 183.
The testimony of a witness who is competent at the time he tes-
tifies is not rendered inadmissible by his subsequently becoming in-
competent. Wells v. Insurance Co., 187 Pa. 166.
Youth. — A boy of thirteen is old enough to be instructed as to the
nature of an oath, if he does not already know it. Com. v. Wilson,
186 Pa. 1.
A child is competent if he believes in a state of rewards and pun-
ishments, and knows that punishment will follow falsehood. Com.
v. Ellenger, 1 Brewst. 352; Com. v. Carey, 2 Brewst. 404.
Atheist not competent. — Michenor v. Taggart, 7 Haz. Leg. Reg.
112. But it is not necessary that the witness should believe in the
everlasting punishment, if he believes in God. Cub bison v. Mc-
Greary, 2 W. & S. 262; Blair v. Seaver, 26 Pa. 274.
Infamous crime. — One convicted of an infamous crime becomes
competent again on being pardoned. Hoffman v. Coster, 2 Whart.
453; Com. v. Railroad Co., 1 Grant, 329; Bowser v. Com., 51 Pa.
332.
Perjury. — Conviction of perjury is still a disqualification. Pepper
& Lewis' Digest of Laws, " Witnesses," sec. 9 ; " Criminal Proce-
dure," sec. 80.
532 A DIGEST OF [Past IIL
One convicted of perjury and afterward pardoned is a competent
witness. Diehl v. Itodyers, 169 Pa. 316.
The conviction of a crime less than infamous does not disqualify.
Com. v. Murphy, 3 Clark, 290 (receiving stolen goods) ; Bickel v.
Fasig, 33 Pa. 463 (conspiracy to defraud) ; Schuylkill Co. v. Copley,
67 Pa. 386 (embezzlement).
In trial for murder a witness who is under sentence of death is
a competent witness for the State. Com. v. Clemmer, 190 Pa. 202.
Drunken person. — Gould v. Crawford, 2 Pa. 89.
Attorneys. — An attorney who conducts the case is competent as
a witness. Follansbee v. Walker, 72 Pa. 228; Frear v. Drinker,
8 Pa. 520 ; 'Newman v. Bradley, 1 Dall. 240.
Question for the court. — The competency of a witness, on ques-
tions of both fact and law, is to be determined by the court. Sem-
ple v. Gallery, 184 Pa. 95.
Time for objecting. — Objections to competency of a witness, if
known, are waived if not made before he is examined. Patterson v.
Wallace, 44 Pa. 88.
Incompetency as to a transaction with one now dead. — See act
of 1887, P. L. 158; Darragh v. Stevenson, 183 Pa. 397; Stauffer v.
Insurance Assn., 164 Pa. 205; Thomas v. Miller, 165 Pa. 216; Acklin
v. McCalmont Co., 201 Pa. 257.
One who has had a transaction with a person now dead is not com-
petent to testify in regard to it until some competent witness ad-
verse to the surviving party has testified to such transaction. Rob-
bins v. Farwell, 193 Pa. 37; Shroyer v. Smith, 2C4 Pa. 310; Kauss
v. Iiohner, 172 Pa. 481.
Witness incompetent as to a transaction with one now deceased
as against the administrator. Flanagan v. Nash, 185 Pa. 41.
The survivor is not competent as to a contract made by him with
a deceased member of a partnership. Jack v. Moyer. 1S7 Pa. 87.
A son is not a competent witness against his father's estate as to
an agreement with his father. Schicab v. Ginkinger, 181 Pa. 8.
An heir-at-law cannot testify against the title conveyed by de-
ceased. Baldwin v. Stier, 191 Pa. 432.
The plaintiff and his wife are both incompetent to testify as to
an oral lease from one now dead. Myers v. Litis. 195 Pa. 595;
Arrott Mills Co. v. Way Mfg. Co., 143 Pa. 435; Crothers v. Crothers,
149 Pa. 201: Baldwin v. Sticr. 191 Pa. 432: Bitner v. Boone, 128
Pa. 567; Sutherland v. Ross, 140 Pa. 379.
Chap. XV.] THE LAW OF EVIDENCE. 533
Instances where the rule did not apply. — The survivor is not dis-
qualified unless his testimony is adverse to the interests of the
decedent. Rine v. Hall, 187 Pa. 264; Home v. Petty, 192 Pa. 32;
Trymby, Hunt & Co. v. Endress, 175 Pa. G.
A widow is a competent witness in ejectment as against pur-
chasers at a sheriffs sale under a judgment against her deceased
husband. Poundstone v. Jones, 187 Pa. 289.
An agent who transacted business for his principal with one
since deceased is a competent witness as to the transaction. »S'ar-
geant v. Insurance Co., 189 Pa. 341.
Disqualification removed. — A witness becomes competent as to^
transactions with one now deceased when he releases all iriterest
adverse to such decedent's estate. Walls v. Walls, 182 Pa. 226.
A witness who is incompetent as to matters occurring with a
person now deceased becomes competent as to all such matters if
called by the adverse party to testify as to any of them. Danley v.
Danley, 179 Pa. 170; Watlcins v. Hughes, 206 Pa. 526.
Surviving party. — Disqualification of a surviving party as a wit-
ness in case of death, lunacy, etc. Pepper & Lewis' Digest of Laws.
" Witnesses," sees. 14-16, 18. 19.
Husband and wife as witnesses against each other. — Pepper &
Lewis' Digest of Laws, "Witnesses," sees. 11, 12; "Criminal Pro-
cedure," sec. 81 ; Laws of 1899, page 41 ; Laws of 1903, page 27.
Article 108.* *
competency in" criminal. cases.
In criminal cases the accused person, and his or her wife
or husband, and every person and the wife or husband of
every person jointly indicted with him, and tried at the
* See Note XLI.
i The Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), by sect. 6,
applies " to all criminal proceedings notwithstanding any enactment in
force at the commencement of this Act," except proceedings for non-
repair of highways, etc. (see post), and Court Martials, unless it is
applied to them by general orders under the Naval Discipline Act. 1866
(29 & 30 Vict. c. 109), s. 65, or rules under the Army Act, 1882 (44
534 A DIGEST OF [Part III.
same time, 2 is incompetent to testify; 3 except as herein-
after mentioned.
Every person charged with an offence, and the wife or
husband, as the case may be, of the person so charged, is a
competent witness for the defence at every stage of the
& 45 Vict. c. 58), s. 70. By sect. 7 it does not extend to Ireland. The
enactments referred to in sect. 6 are contained in a number of Statutes,
which, before 1898, made accused persons and their wives or husbands
competent witnesses to different extents, in different specified cases. It
seems probable that subsequent Statute Law Revision Acts will repeal
these enactments. Those now in force, and subject to this section, are
The Metalliferous Mines Regulation Act, 1872 (35 & 36 Vict. c. 77),
s. 34 (4) ; The Licensing Act, 1872 (35 & 36 Vict. c. 94), s. 51 (4) ; The
Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), s. 21; The
Conspiracy and Protection of Property Act, 1875 (38 & 39 Vict. c. 86),
s. 11; The Threshing Machines Accidents Prevention Act, 1878
(41 & 42 Vict. c. 12), s. 3; The Army Act, 1882 (44 & 45 Vict. c. 58),
s. 156 (3) ; The Explosives Act, 1883 (46 & 47 Vict. c. 3), s. 4 (2) ;
The Married Women's Property Act, 1884 (47 & 48 Vict. c. 14),
s. 1, as to which see post in the above article; The Criminal Law
Amendment Act, 1885 (48 & 49 Vict. c. 69), s. 20; The Merchandise
Marks Act, 1887 (50 & 51 Vict. c. 28), s. 10 (1); The Coal Mines
Regulation Act, 1887 (50 & 51 Vict. c. 58), s. 62 (2) ; The Law of
Libel Amendment Act, 1888 (51 & 52 Vict. c. 64), s. 9; The Pre-
vention of Cruelty to Children Act, 1894 (57 & 58 Vict. c. 41), s. 12;
The Building Societies Act, 1894 (57 & 58 Vict. c. 47), s. 24; The
Diseases of Animals Act, 1S94 (57 & 58 Vict. c. 57), s. 57 (3) ; The
Merchant Shipping Act. 1894 (57 & 58 Vict. c. 60), s. 694; The Law
of Distress Amendment Act, 1895 (58 & 59 Vict. c. 24), s. 5; The
False Alarms of Fire Act, 1895 (58 & 59 Vict. c. 28), s. 2; The Fac-
tory and Workshop Act, 1895 (58 & 59 Vict. c. 37), s. 49; The Cor-
rupt and Illegal Practices Prevention Act, 1895 (58 & 59 Vict. c.
40), s. 2; The Chaff-cutting Machines (Accidents) Act, 1897 (60
Sl 61 Vict. c. 60, s. 5.
2 Not if they are tried separately; Windsor v. R., 1866, L. R. 1 Q.
B. 390; Re, Bradlaugh, 15 Cox, 257.
3 R. v. Payne, 1872, 1 C. C. R. 349; and R. v. Thompson, 1872, lb. 377.
Chap. XV.] THE LAW OF EVIDENCE. 535
proceedings, 4 whether the person so charged is charged
solely or jointly with any other person; provided —
a person so charged shall not be called as a witness ex-
cept upon his own application; and
the wife or husband of a person so charged cannot be
called as a witness except upon the application of the per-
son so charged. 5
But the wife or husband of a person charged may be
called as a witness either for the prosecution or defence,
and without the consent of the person charged, if he is
charged with —
(a) an offence under any enactment mentioned in the
footnote hereto; 6 or
(&) an offence as to which the wife or husband of the
person charged may by common law be called as a witness
without his or her consent, i. e. an offence consisting of any
4 This does not include proceedings before a Grand Jury ; R. V.
Rhodes, [1899], 1 Q. B. 77.
5 61 & 62 Vict. c. 36, s. 1.
6/6. ss. 1 (c. ), 4. The enactments referred to are set out in the
Schedule to the Act, being The Vagrancy Act, 1824 (5 Geo. IV, c. 83),
the enactment punishing a man for neglecting to maintain or deserting
his wife or any of his family; The Poor Law (Scotland) Act, 1845
(8 & 9 Vict. c. 83), s. 80, relating to the like or neglect to main-
tain an illegitimate child; The Offences against the Person Act, 1861
(24 & 25 Vict. c. 100), ss. 48-55, relating to rape, indecent assault
on a female, abduction; The Married Women's Property Act, 1882
(45 & 46 Vict. c. 75), ss. 12 and 16, relating to offences by a married
man or woman against his wife's or her husband's property, as to which
see supra; The Criminal Law Amendment Act, 1885 (48 & 49 Vict,
c. 69) ; and The Prevention of Cruelty to Children Act, 1894 (57 & 58
Vict. c. 41).
536 A DIGEST OF [PabtIIL
bodily injury or violence inflicted on his or her wife or
husband. 7
In any such criminal proceeding against a husband or a
wife, as is authorised by the Married Women's Property
Act, 1882 (45 & 46 Vict. c. 75, ss. 12 and 16), the hus-
band and wife respectively are competent and admissible
witnesses, and except when defendant compellable to give
evidence. 8
The following proceedings at law are not criminal
within the meaning of this article : —
Trials of indictments for the non-repair of public high-
ways or bridges, or for nuisances to any public highway,
river, or bridge; 9
Proceedings instituted for the purpose of trying civil
rights only; 9
"61 & 62 Vict. c. 36, ss. 1 (c), 4; and as to the common law, see
R. v. Wakefield, 1877, 2 Lew. 287; and Reeve v. Wood, 18G4, 5 B. & S.
364. The common law lias also been supposed to apply to treason,
Taylor's Ev. s. 1372.
8 47 Vict. c. 14, which must be read as subject to 61 & 62 Vict.
c. 36, ante; and see the case of R. v. Brittleton, 1884, 12 Q. B. D. 266,
which turns on the wording of the Act of 1882, and occasioned this
enactment. The following doubt arises on the effect of this enactment.
Does it mean (a) only that the wife is competent as against the husband,
and the husband as against the wife, notwithstanding their marriage, or
(6) that in such cases not only the prosecutor, though married to the
prisoner, but the prisoner, though prisoner and though married, is to be
competent, though the prisoner is not to be compellable? It is observ-
able that the first " husband and wife " does not become " wife or
husband " before the word " respectively," as would have been
natural. Tt is also remarkable that in the Act of 1882 a
criminal proceeding is described as " a remedy " — a very peculiar
phrase.
9 40 & 41 Vict. c. 14. The provisions of this Act are not affected by
The Criminal Evidence Act, 1898, 61 & 62 Vict. c. 36, s. 6; see ante,
p. 414, note 1.
Chap. XV.] THE LAW OF EVIDENCE. 537
Proceedings on the Revenue side of the Exchequer Di-
vision of the High Court of Justice. 10
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 330, 334-
336, 362, 363; 1 Wharton's Criminal Evidence, sec. 421 et seq.; 29
Am. & Eng. Encyclopaedia of Law, p. 552; Rapalje on Witnesses,
sec. 146 et seq.; Hiler v. People, 156 111. 511; Eolley v. State, 105
Ala. 100; State v. Pain, 48 La. Ann. 311; Holman v. State, 72 Miss.
108.
By statute now a witness may generally testify if he so wishes,
but his failure to take the stand may not be commented upon,
nor does it give rise to any presumption against him. Wilson v.
U. S., 149 U. S. 60; Com. v. Scott, 123 Mass. 239; Watt v. People,
126 111. 9; Tarbrough v. State, 70 Miss. 593; Showalter v. State, 84
Ind. 562; Conway v. State, 118 Ind. 482; State v. Smith, 86 N. C.
705; Kidwell v. Com., 97 Ky. 538.
The jury may consider his interest in weighing his testimony.
Reagan v. U. S., 157 U. S. 301 ; State v. Pratt, 121 U. S. 566; Doyle
v. People, 147 111. 394.
Persons jointly indicted. — Those jointly indicted may, now, gen-
erally, by statute, be witnesses for or against each other. Com. v.
Brown, 130 Mass. 279; Wilson v. U. S., 149 U. S. 60; Watt v. Peo-
ple, 126 111. 9; People v. Sansome, 98 Cal. 235; Showalter v. State,
84 Ind. 562; Yarlrough v. State, 70 Miss. 593.
People jointly indicted may be competent witnesses. State v.
Smith, 86 N. C. 705 ; Kidwell v. Com., 97 Ky. 538 ; Conway v. State,
118 Ind. 482; Com. v. Brown, 130 Mass. 279.
If a nolle has been entered in the case of the one jointly indicted,
or if he has been acquitted, he becomes competent. State v. Walker,
98 Mo. 95; Love v. People, 160 111. 501. So, if he has been convicted.
Brown v. Com., 86 Va. 935; State v. Minor, 117 Mo. 302; State v.
Jones, 51 Me. 125. Contra, Kehoe v. Com., 85 Pa. St. 127. So, if he
is to have a separate trial. Benson v. U. S., 146 U. S. 325; Allen v.
io 28 & 29 Vict. c. 104, s. 34.
538 A. DIGEST OF [Part III.
State, 10 0. St. 287; Smith v. Com., 90 Va. 759; Noyes v. State, 41
N. J. L. 418. Contra, Staup v. Com., 74 Pa. St. 458.
Husband or wife. — Lucas v. State, 23 Conn. 19, 20; State v.
Gardner, 1 Root (Conn.), 485. See Conn. Gen. Stats., sec. 1623.
See also Com. v. Sapp, 90 Ky. 580; SfoJe v. Pennington, 124 Mo. 388;
State v. Gwesf, 100 N. C. 410; State v. Chambers, 187 la. 1; Bassett
v. ?7. ST., 137 U. S. 496; People v. Quanstrom, 93 Mich. 259; Love v.
People, 160 111. 507.
Now, generally, by statute, the husband or wife of the accused may
testify as to everything except confidential communications (e. g.,
Maine Rev. Stats., chap. 134, sec. 19; Mass. Pub. Stats., chap. 169,
sec. 18, par. 3). See Com. v. Moore, 162 Mass. 441.
A husband or wife may be a competent witness to a bodily assault
committed upon the witness by the other party to the relation.
Johnson v. State, 94 Ala. 53; State v. Pennington, 124 Mo. 388.
In some States husbands and wives may testify against each other
in prosecutions for bigamy, incest or adultery. Lord v. State, 17
Neb. 526; State v. Chambers, 87 la. 1. Contra, Bassett v. V. S., 137
U. S. 496; McLean v. State, 32 Tex. App. 521; People v. Quanstrom,
93 Mich. 254.
In the Federal courts, accused persons and their wives and hus-
bands are competent witnesses, but cannot be compelled to testify.
Act of Congress, March 19, 1878, chap. 37, Rev. Stats, of U. S.,
sec. 858a.
A wife cannot ordinarily testify against her husband in a crim-
inal case. Wilke v. People, 53 N. Y. 525.
New Jersey.
Defendant. — Person indicted is competent in his own behalf.
G. S. 1895, "Evidence," 8.
Joint defendants. — Joint defendants in larceny are incompetent on
behalf of each other. State v. Carr, Coxe, 1. See State v. Brien,
32 N. J. L. 414.
The court may order an accomplice acquitted or a nolle prosequi
may be entered for the purpose of rendering a witness competent.
State v. Graham, 41 N. J. L. 15.
A coconspirator who has pleaded guilty is a competent witness
for the State. U. S. v. Sacia, 2 Fed. Rep. 754.
One jointly indicted with the defendant is a competent witness
for the State in a separate trial. Noyes v. State, 31 N. J. L. 418.
Chap. XV.J THE LAW OF EVIDENCE. 539
Rule as to husband and wife. — G. S. 1895, " Evidence," 5, 51, 54,
57, 73; "Disorderly Persons," 18.
Wife competent against the husband in prosecutions for desertion
and nonsupport. Laws of 1903, chap. 210.
Where two parties have been jointly indicted and a severance lias
been had, the wife of one of the defendants is a competent witness
against the other. Munyon v. State, 62 X. J. L. 1.
Forgery. — Person whose name has been forged is competent on
trial of an indictment for the forgery. G. S. 1S95, " Evidence," 7.
Maryland.
Defendant. — The defendant in a criminal prosecution is a compe-
tent but not a compellable witness. P. G. L. 1888, art. 35, sec. 3.
Accessory. — One indicted as an accessory before the faet is not
competent on behalf of the accused, his principal. Davis v. State,
38 Md. 15.
Husband and wife. — A husband and a wife are not competent as
against each other. Turpin v. State, 55 Md. 462; Hanon v. State,
63 Md. 123.
Husband or wife of the accused is competent. P. G. L. 1S88, art.
35, sec. 3.
In actions in which a husband and wife are not directly inter-
ested, each is a competent witness, although the testimony tends
to incriminate the other. Funk v. Kincaid, 5 Md. 404.
In prosecution for wife-beating, the wife is a competent witness
against her husband. Hanon v. State, 63 Md. 123.
How a former conviction may be proved. P. G. L. 1S88, art. 35,
sec. 5.
Pennsylvania.
Statute. — All persons made competent witnesses, except those
convicted of perjury and in certain cases husband and wife. Pep-
per & Lewis' Digest of Laws, "Criminal Procedure," sees. 79-81;
"Witnesses," sees. 1-3; Laws of 1899, page 41; Laws of 1903,
page 27.
Husband and wife. — By statute, a wife is a competent witness
for her husband but not against him. T 'eager v. Weaver. 04 Pa.
425: Cowley v. Wilson. 7 Phila. 676: Craig v. Brendel. 09 Pa. 153:
Ballentine v. White, 77 Pa. 20.
640 A DIGEST OF [Pabt 111.
A wife is incompetent to testify against her husband in a crimi-
nal case. Com. v. Faynter, 8 Phila. 009; Com. v. McEwen, 1 Clark,
140.
Where two are jointly indicted but separately tried, the wife of
the one not on trial is competent to testify for the other. Com. v.
Hanson, 2 Ash. 31. And also for the State against the other,
though she may refuse to answer questions incriminating her hus-
band. Com. v. Reid, 8 Phila. 385.
Persons jointly indicted. — Three burglars jointly indicted for
murder. On a separate trial one may testify as to the criminal
concert of the three prior to the crime. Com. v. Biddle, 200 Pa.
640.
One jointly indicted is not competent as a witness for the other
on the latter's separate trial, so long as such witness has not been
acquitted or convicted himself. Shay v. Com., 36 Pa. 305; Staup
v. Com., 74 Pa. 458.
If one jointly indicted with others has been convicted, he does
not become a competent witness against the others. Kehoe v. Com.,
S5 Pa. 127.
Article 109.
competency in proceedings relating to adultery.
In proceedings instituted in consequence of adultery,
the parties and their husbands and wives are competent
witnesses, provided that no witness in any [ ? such] pro-
ceeding, whether a party to the suit or not, is liable to be
asked or bound to answer any question tending to show
that he or she has been guilty of adultery, unless such
witness has already given evidence in the same proceeding
in disproof of his or her alleged adultery. 11
11 32 & 33 Vict. c. 68, s. 3. The word " such " seems to have been
omitted accidentally.
Chap. XV.] THE LAW OF EVIDENCE. 541
AMERICAN NOTE.
General.
Authority. — Howard v. Brower, 37 Ohio St. 402.
Adultery. — The evidence of the particeps criminis in adultery is
to be received with caution. Wahle v. Wahle, 71 111. 511.
New Jersey.
See statute.— G. S. 1895, "Evidence," 5, 73.
Pennsylvania.
Testimony of husband and wife. Bitner v. Boone, 123 Pa. 567.
Wife's testimony not admissible against a codefendant of her
husband. Cornelius v. Hambay, 150 Pa. 364.
See statute. — ■ Pepper & Lewis' Digest of Laws, " Criminal Pro-
cedure," sec. 81.
Article 110.
communications during marriage.
No husband is compellable to disclose any communica-
tion made to him by his wife during the marriage, and no
wife is compellable to disclose any communication made to
her by her husband during the marriage. 12
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 254; Mc-
Kelvey on Evidence, p. 288; Campbell v. Chace, 12 R. I. 333.
Sustaining text. — Seitz v. Seitz, 170 Pa. St. 71; Smied v. Frank.
86 Ind. 250; People v. Hullings, 83 Cal. 138; Com. v. Sapp, 90 Ky.
12 16 & 17 Vict. c. 83, s. 3, and 61 & 62 Vict. c. 36. s. 1. subs, {d) . It
is doubtful whether this would apply to a widower or divorced person,
questioned after the dissolution of the marriage as to what had been
communicated to him whilst it lasted.
542 A DIGEST OF [Past IIlJ
580; Hitchcock v. Moore, 70 Mich. 112; Hopkins v. Grimshaw, 165
U. S. 342; Goelz v. Goelz, 157 111. 33; Litchfield v. Merritt, 102
Mass. 520; Dickerrnan v. Graves, 6 Cush. (Mass.) 308, 53 Am. Dec.
41; Broivn v. Wood, 121 Mass. 137; .Drew v. Tarbell, U7 Mass.
90; Com. v. Hayes, 145 Mass. 289; Com. v. Caponi, 155 Mass. 534.
A husband or wife may not testify to conversations which are
overheard by another. Campbell v. Chace, 12 R. I. 333. Contra,
Lyon v. Prouty, 154 Mass. 488; Sessions v. Trevitt, 39 O. St. 259.
A wife may testify to private conversations, when the question
arises upon the hearing of a claim in her favor against her hus-
band's insolvent estate. Spitz's Appeal, 56 Conn. 187.
One who overhears conversations between husband and wife may
testify. Gannon v. People, 127 111. 507; State v. Gray, 55 Kan.
135; Com. v. Griffin, 110 Mass. 181; Lyon v. Prouty, 154 Mass. 488;
State v. Hoyt, 47 Conn. 518.
A wife cannot testify as to declarations of her husband. Enos v.
Hunter, 4 Gilm. 211.
A wife is competent to testify as to a transaction as to which
she was the agent of her husband. Schneider v. Kabsch, 91 111.
App. 386.
Impotency. — A divorced wife is incompetent to testify as to the
impotency of her former husband. Griffith v. Griffith, 162 111. 368,
reversing 55 111. App. 474.
Communications between husband and wife privileged. — Dye v.
Davis, 65 Ind. 474; Jack v. Russey, 8 Ind. ISO; Perry v. Randall,
83 Ind. 143; Stanley v. Montgomery, 102 Ind. 102; Smied v. Frank,
86 Ind. 250.
Communications include not only statements but actions as well.
Perry v. Randall, 83 Ind. 143.
Where a husband is prosecuted for a crime committed upon the
person of his wife, their conversations connected with the crime are
not privileged. Doolittle v. State, 93 Ind. 272.
In a suit against husband and wife to set aside a conveyance as
being fraudulent, the negotiations between them are not privileged.
Beit mati v. Hopkins, 109 Ind. 177.
Where the wife is the agent of the husband she may testify as to
what was said between them with reference to such agency. Schmeid
v. Frank, 86 Ind. 250.
Neither party to the marriage relation can disclose communica-
tions made during the relation and this bar exists after the relation
is terminated. Dye v. Davis, 65 Ind. 474; Jack v. Russey, 8 [nd.
Chap. XV.] THE LAW OF EVIDENCE. 543
180; Perry v. Randall, S3 Ind. 143; Stanley v. Montgomery, 102
Ind. 102.
A husband is not a competent witness after the death of his wife,
on the question of whether or not he abandoned her. Dye v. Davis,
05 Ind. 474.
Communications between husband and wife are privileged even
after the death of the husband. Stanley v. Montgomery, 102 Ind.
102; Turner v. Cook, 36 Ind. 129.
A husband or wife may testify as to facts learned by them through
the marital relation. Poison v. State, 137 Ind. 519.
As to the evidence of husband and wife in forgery, see Beyerline
v. State, 147 Ind. 125.
A wife may testify concerning misrepresentations and acts of
undue influence. De Ruiter v. De Ruiter, 28 Ind. App. 9, 62 N. E.
100.
In presence of stranger. — Conversations between husband and
wife in the presence of others are not privileged. Reynolds v. State,
147 Ind. 3.
In an action of criminal conversation, the husband may testify as
to statements by the wife in the presence of the defendant. Mainard
v. Reider, 2 Ind. App. 115.
Privileged communications. — In a suit by the husband for the
alienating of his wife's affections he cannot testify as to conversa-
tions that took place between his wife and himself in the absence of
the defendant without the consent of his wife, such communications
being privileged. McEenzie v. Lautenschlager, 113 Mich. 171.
After death of others. — A husband cannot testify to confidential
communications, even after the death of the wife. Maynard v. Vin-
ton, 59 Mich. 139.
Consent. — A husband or wife may testify to confidential commu-
nications with the consent of the other. Jenne v. Marble, 37 Mich.
319; Hunt v. Eaton, 55 Mich. 362.
New Jersey.
Sustaining text. — Clawson V. Riley, 34 N. J. Eq. 348 ; Rusling v.
Bray, 38 N. J. Eq. 398; Cray v. Gray, 39 N. J. Eq. 512.
When husband and wife are joint trustees, their communications
in relation to the trust property are not privileged. Wood v. Chet-
wood, 27 N. J. Eq. 311.
Statutory rule.— G. S. 1895, " Evidence," 5.
544 A DIGEST OF [Paht III.
Maryland.
Cut a wife is competent in a suit to set aside a marriage contract
with her husband on the ground of forgery. Classen v. Classen,
57 Md. 510.
Statute.— P. G. L. 1888, art. 35, sec. 3.
Pennsylvania.
Sustaining text. — Seitz v. Seitz, 170 Pa. 71.
Confidential communications not admissible, but conversations as
to business affairs in which third parties take part are admissible.
Robb's Appeal, 98 Pa. 501.
After the husband's death the wife is incompetent as to confiden-
tial matters. Hitner's Appeal, 54 Pa. 110.
A widow is competent in a suit between her husband's executor
and a stranger as to all matters not learned in consequence of the
marriage relation. Cornell v. Vanartsdalen, 4 Pa. 364.
Widow is allowed to testify as to a verbal agreement with her
husband, not confidential. Peiffer v. Lytle, 58 Pa. 386.
A wife may testify in a divorce proceeding as to statements and
admissions by her husband that he had committed adultery. Seitz
v. Seitz, 170 Pa. 71.
See statutory rule. — Pepper & Lewis' Digest of Laws, " Criminal
Procedure," sec 82 ; " Witnesses," sec. 10.
Article 111.*
judges and advocates privileged as to certain
questions.
It is doubtful whether a judge is compellable to testify
as to anything which came to his knowledge in court as
such judge. 13 It seems that a barrister cannot be com-
pelled to testify as to what he said in court in his character
of a barrister. 14
* See Note XIJI.
13 R. v. Gazard, 1838, 8 C. & P. 595.
H Curry v. Walter, 1796, 1 Esp. 456.
Chap. XV.] THE LAW OF EVIDENCE. 545
AMERICAN NOTE.
General.
Authorities. — 1 Wharton on Evidence, sec. 600; 17 Am. & Eng.
Encyclopaedia of Law (2d ed.), p. 724 et seq.; Weeks on Attorneys
(2d ed.), sees. 124, 125.
Judges. — Spalding v. Lowe, 56 Mich. 366 ; Zitske v. Goldberg,
38 Wis. 216; State v. Waterman, 87 la. 255; Highberger v. Stiffler,
21 Md. 338; Baker v. Thompson, 89 Ga. 486; Wright v. McCamp-
bell, 75 Tex. 644; Barrett v. James, 30 S. C. 329; Allen's Appeal,
69 Conn. 709.
Whether to prove the points decided, the judge is a competent
witness, qucere. Supples v. Cannon, 44 Conn. 430, and reporter's
note.
Justices of the peace may testify on appeal as to what took place
before them. State v. Van Winkle, 80 la. 15; State v. Duffy, 57
Conn. 525.
Where, on appeal, the question of the interest of the judge arises,
he is a competent witness on that issue. Sigourney v. Sibley, 21
Pick. (Mass.) 101, 32 Am. Dec. 248.
Auditors, arbitrators, etc. — Packard v. Reynolds, 100 Mass. 153;
Schmidt v. Glade, 126 111. 485; Calvert v. Friebus, 48 Md. 44; Rob-
inson v. Shanks, 118 Ind. 125.
» Attorney. — French v. Hall, 119 U. S. 152: Freeman v. Fogg, 82
Me. 408; Follansbee v. Walker, 72 Pa. St. 228; Branson v. Caru-
thers, 49 Cal. 374; Connolly v. Straiv, 53 Wis. 645; Carrington v.
Holabird, 17 Conn. 530.
Generally now attorneys are competent witnesses. Weeks on At-
torneys (2d ed.), sees. 124, 125.
The fact that one is counsel in a case and engaged for a contin-
gent fee does not render him incompetent as a witness. Thon v.
Rochester R. R. Co., 83 Hun, 443.
Arbitrator. — Arbitrators are competent witnesses. Spurck v.
Crook, 19 111. 415; Stone v. Atwood, 28 111. 30; Claycomb v. Butler,
36 111. 100; Schmidt v. Glade, 126 111. 485.
New Jersey.
A justice may testify as to proceedings before him. Brown V.
Elliott, 17 N. J. Eq. 353; Dilts v. Parke, 1 South. 219.
35
546 A DIGEST OF [Pabt III.
Maryland.
Judges.— Highberger v. Stiffler, 21 Md. 338.
Auditors, arbitrators, etc. — Calvert v. Friebus, 48 Md. 44.
Pennsylvania.
Judges. — Hibbs v. Blair, 14 Pa. 413; Graham v. Graham, 9 Pa.
254; Converse v. Colton, 49 Pa. 346.
Notes taken by a judge during a trial as evidence. Schall v.
Miller, 5 Whart. 156.
Attorney.— Follansbee v. Walker, 72 Pa. 228.
Article 112.
evidence as to affairs of state.
"No one can be compelled to give evidence relating to
any affairs of State, or as to official communications be-
tween public officers upon public affairs, unless the officer
at the head of the department concerned permits him to do
so, 15 or to give evidence of what took place in either House
of Parliament, without the leave of the House, though he
may state that a particular person acted as Speaker. 16
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 250, 251 j
McKelvey on Evidence, p. 301 ; Oliver v. Pate, 41 Ind. 132, 141 ; U. 8.
v. Moses, 4 Wash. C. C. 726; Worthington v. Scribner, 109 Mass.
487, 488, 12 Am. Rep. 736; Appeal of Hartranft, 85 Pa. St. 433;
Thompson v. German., etc., R. Co., 22 N. J. Eq. 171. See also Totten
v. U. S., 92 U. S. 105 ; U. S. v. Trumbull, 48 Fed. Eep. 194.
New Jersey.
Authority. — Thompson v. Gey-man, etc., B. Co., 22 N. J. Eq. 171.
Pennsylvania.
Authority. — Appeal of Hartranft, 85 Pa. 433.
15 Beatson v. Skene, 1S60, 5 H. & N. 838.
16 Chubb v. Salomons, 1852, 3 Car. & Kir. 77; Plunkett v. Cobbett,
1804, 5 Esp. 136.
Chap. XV.] THE LAW OF EVIDENCE. 547
Article 113.
information as to commission of offences.
In cases in which the government is immediately con-
cerned no witness can be compelled to answer any question,
the answer to which would tend to discover the names of
persons by or to whom information was given as to the
commission of offences.
A criminal prosecution by the Director of Public Prose-
cutions is a public prosecution, and the Director of Public
Prosecutions cannot be required to say from whom he
acquired information or what it was. 17
In ordinary criminal prosecutions it is for the judge to
decide whether the permission of any such question would
or would not, under the circumstances of the particular
case, be injurious to the administration of justice. 18
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 250; Mc-
Kelvey on Evidence, p. 301; Yogel v. Gruaz, 110 U. S. 311; People v.
Laird, 102 Mich. 135; State v. Loper, 16 Me. 293; U. S. v. Moses, 4
Wash. C. C. (U. S.) 726; Worthington v. Scribner, 109 Mass. 487,
488, 12 Am. Rep. 736.
All communications in regard to the commission of offenses made
to public officers, with a view to the prosecution or detention of
suspected offenders, are privileged, and neither the communications
themselves, nor the name of the person who made them, may be
divulged without the consent of said person. Oliver v. Pate, 41
Ind. 132, 141. See also State v. Van Buskirk, 59 Ind. 384.
New Jersey.
Authority. — Patton v. Freeman, Coxe, 113.
17 Marks v. Bey f us, \_i 890], 25 Q. B. D. 494.
18 R. v. Hardy, 1794. 24 S. T. 811: A. O. v. Bryant, 1846, 15 M. &
W. 169; R. v. Richardson, 1863, 3 F. & F. 693.
548 A DIGEST OF [Pabt III.
Article 114.
competency of jurors.
A petty juror may not 19 and it is doubtful whether a
grand juror may 20 give evidence as to what passed between
the jurymen in the discharge of their duties. It is also
doubtful whether a grand juror may give evidence as to
what any witness said when examined before the grand
jury.
AMERICAN NOTE.
General.
Authorities. — 1 Wharton on Evidence, sec. 901 et seq.; 1 Green-
leaf on Evidence (15th ed.), sees. 252, 252a.
Petty jurors. — State v. Harrison, 36 W. Va. 729; Follansbee v.
Walker, 74 Pa. St. 306; Swails v. Cissna, 61 la. 693; White v. State,
73 Miss. 50; State v. Vari, 35 S. C. 175; Studley v. Rail, 22 Me. 198,
201; State v. Pike, 65 Me. Ill; Eannum v. Belchertoum, 19 Pick.
(Mass.) 311, 313; Com. v. White, 147 Mass. 76; Woodward v. Lea-
vitt, 107 Mass. 453; Rowe v. Carney, 139 Mass. 41. See Mattox v.
U. S., 146 U. S. 140.
The testimony of jurors is not admissible to impeach their verdict
as by showing their misconduct. Taylor v. Garnett, 110 Ind. 166;
Sanitary Dist. v. Cullerton, 147 111. 385; People v. Stimer, 82 Mich.
17; State v. Wood, 124 Mo. 212; People v. Kloss, 115 Cal. 567; Shep-
herd v. Camden, 82 Me. 535; Mead v. Smith, 16 Conn. 346; Bridge-
water v. Plymouth, 97 Mass. 382. But it is competent to prove the
misconduct of parties with reference to them. Johnson v. Witt, 138
Mass. 79; Peck v. Brewer, 48 111. 54; People v. Hunt, 59 Cal. 430;
Clement v. Spear, 56 Vt. 401; State v. Rush, 95 Mo. 199; Chicago,
etc., R. Co. v. McDaniel, 34 Ind. 166; Eeffron v. Gallupe, 55 Me. 565.
19 Taise v. Delaval, 1785, 1 T. R. 11; Burgess v. Langley, 1843,
5 M. & G. 722.
20 1 Ph. Ev. 140; Taylor, s. 943. .,
Chap. XV.] THE LAW OF EVIDENCE. 549
Grand jurors. — Grand jurors may testify as to what particular
witnesses said. State v. Benner, 64 Me. 267, 283; State v. Coffee,
56 Conn. 399.
It may be shown by the testimony of grand jurors that twelve
did not concur in finding the indictment. Low's Case, 4 Me. 439,
444. Contra, State v. Fassett, 16 Conn. 457, 466. See also on grand
jurors. U. S. v. Farrington, 5 Fed. Rep. 343; Gitchell v. People,
146 111. 175; Com. v. Scoicden, 92 Ky. 120; Loveland v. Cooley, 59.
Minn. 259; State v. Johnson, 115 Mo. 480.
When an effort is made to impeach a witness by showing that he
told a different story before the grand jury, the grand jurors are
competent witnesses. State v. Benner, 64 Me. 267; State v. Wood,
53 N. H. 484; Gordon v. Com., 92 Pa. St. 216; Burdick v. Hunt, 43
Ind. 381; Bressler v. People, 117 111. 422; State v. Thomas, 99 Mo.
235; Pellum v. State, 89 Ala. 28.
In an action for malicious prosecution, one who was present may
testify as to the evidence adduced before the grand jury. Hunter
v. Randall, 69 Me. 183. Contra, Kennedy v. Holladay, 105 Mo. 24.
Grand jurors may testify as to whether or not one appeared be-
fore them as a witness. Com. v. Hill, 11 Cush. (Mass.) 137; People
v. Northey, 77 Cal. 619.
On motion for a new trial, the testimony of a juror is not admis-
sible to impeach the verdict. Williams v. Montgomery, 60 N. Y.
648; Dalrymple v. Williams, 63 N. Y. 361.
New Jersey.
Authorities. — State v. Powell, 2 Hal. 244; Wallace v. Coil, 4 Zab.
600.
Petty jurors — Hutchinson v. Coal Co., 36 N. J. L. 24; Kennedy
V. Kennedy, 18 N. J. L. 450 (to show verdict incorrectly returned) ;
Peters v. Fogarty, 55 N. J. L. 386.
Petty juror incompetent to testify as to what was said in the
jury-room or while viewing premises. State v. Vansciver, 7 N. J.
L. J. 268.
Testimony of jurors is admissible to show that the foreman mis-
stated their verdict. Peters v. Fogarty, 55 N. J. L. 386.
Grand jurors.— Wi Ison v. Hill, 13 N. J. Eq. 143.
Grand juror not competent to prove that a witness testified other-
wise before the grand jury. Imlay v. Rogers, 2 Hal. 347.
550 A DIGEST OF [Past III.
Maryland.
Grand jurors. — Grand jurors cannot testify as to their reasons for
the action they took. Owens v. Owens, 81 Md. 518.
A grand juror is not permitted to testify as to the individual
action of any member of the jury in regard to a matter before
them. Elbin v. Wilson, 33 Md. 135.
A grand juror may testify that a certain witness' testimony be-
fore the petty jury is different from that he gave before the grand
jury. Kirk v. Garrett, 84 Md. 383.
Testimony of grand jurors is competent to prove perjury before
them. Izer v. State, 77 Md. 110.
Petty jurors. — A juror is not a competent witness to impeach the
verdict, whether as to misbehavior or mistake. Bosley v. Ches. Ins.
Co., 3 G. & J. 450; Browne v. Browne, 22 Md. 103.
A petty juror is not a competent witness as to the motives upon
which a verdict was reached. Ford v. State, 12 Md. 514.
Pennsylvania.
Petty jurors. — Follansbee v. Walker, 74 Pa. 306.
A juror is a competent witness in a criminal case, but one who
may become a witness ought not be put on the jury. Hoivser v.
Com., 51 Pa. 332.
Grand jurors. — When an effort is made to impeach a witness by
showing that he told a different story before the grand jury, the
grand jurors are competent witnesses. Gordon v. Com., 92 Pa. 216.
In malicious prosecution, a member of the grand jury is com-
petent to prove who was the prosecutor. Huidekoper v. Cotton, 3
Watts, 56.
Article 115.*
professional, communications.
~No legal adviser is permitted, whether during or after
the termination of his employment as such, unless with his
client's express consent, to disclose any communication,
oral or documentary, made to him as such legal adviser, by
* See Note XLIII.
Chap. XV.] THE LAW OF EVIDENCE. 501
or on behalf of his client, during, in the course, and for
the purpose of his employment, whether in reference to
any matter as to which a dispute has arisen or otherwise,
•or to disclose any advice given by him to his client during,
in the course, and for the purpose of such employment. It
is immaterial whether the client is or is not a party to the
action in which the question is put to the legal adviser.
This article does not extend to —
(1) Any such communication as aforesaid made in
furtherance of any criminal purpose; whether such pur-
pose was at the time of the communication known to the
professional adviser or not ; 21
(2) Any fact observed by any legal adviser, in the
course of his employment as such, showing that any crime
or fraud has been committed since the commencement of
his employment, whether his attention was directed to
such fact by or on behalf of his client or not;
(3) Any fact with which such legal adviser became ac-
quainted otherwise than in his character as such.
The expression " legal adviser " includes barristers and
solicitors, 22 their clerks, 23 and interpreters between them
21 R. v. Cox & Railton, 1884, 14 Q. B. D. 153. The judgment in
this case is that of ten judges in the Court for Crown Cases Reserved,
and examines minutely all the cases on the subject. These cases put
the rule on the principle, that the furtherance of a criminal purpose
can never be part of a legal adviser's business. As soon as a lega]
adviser knowingly takes part in preparing for a crime, he ceases to
act as a lawyer and becomes a criminal — a conspirator or accessor}
as the ease may be.
22 Wilson v. Raslall, 1792, 4 T. R. 753. As to interpreters, lb. 756,
23 Taylor v. Foster, 1825, 2 C. & P. 195; Foote v. Hayne, 1824,
1 C. & P. 545. Qucere, whether licensed conveyancers are within the
552 A DIGEST OF [Pabt III.
and their clients. It does not include officers of a cor-
poration through whom the corporation has elected to make
statements. 24
Illustrations.
(a) A, being charged with embezzlement, retains B, a barrister, to
defend him. In the course of the proceedings, B observes that an
entry has been made in A's account book, charging A with the sum
said to have been embezzled, which entry was not in the book at the
commencement of B's employment.
This being a fact observed by B in the course of his employment,
showing that a fraud has been committed since the commencement
of the proceedings, is not protected from disclosure in a subsequent
action by A against the prosecutor in the original case for malicious
prosecution.25
(6) If a legal adviser witnesses a deed, he must give evidence as
to what happened at the time of its execution.26
(c) A retains B, an attorney, to prosecute C (whose property he
had fraudulently acquired) for murder, and says, "It is not proper
for me to appear in the prosecution for fear of its hurting me in the
cause coming on between myself and him ; but I do not care if I give
£10,000 to get him hanged, for then I shall be easy in my title and
estate." This communication is not privileged.27
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 237-246 r
261; 1 Wharton on Evidence, sees. 576-594; Weeks on Attorneys-
at-Law (2d ed.), chap. 8; Com. Life Ins. Co. v. Schaefer, 94 U. S.
457 ; People v. Barker, 56 111. 299 ; Sweet v. Owens, 109 Mo. 1 ; Mc-
Lellan v. Longfellow, 32 Me. 494, 54 Am. Dec. 599; Snow v. Gould,
rule? Parke, B., in Turquand v. Knight, 1836, 2 M. & W. at p. 100 r
thought not. Special pleaders would seem to be on the same footing.
24 Mayor of Stcansea v. Quirk, 1879, 5 C. P. D. 106. Nor pur-
suivants of the Herald's College; Slade v. Tucker. 1880, 14 Ch. Div.
824.
25 Brown v. Foster, 1857, 1 H. k N". 736.
MCraiccour v. Salter, 1881, 18 Ch. Div. pp. 35-6.
27 Annesley v. Anglesea, 1743, 17 S. T. 1223-44.
Chap. XV.] THE LAW OF EVIDENCE. 553
74 Me. 540, 43 Am. Rep. 604 ; Thome v. Kilborne, 28 Vt. 750, 67 Am.
Dec. 742; Earle v. Grant, 46 Vt. 113; Wade v. Ridley, 87 Me. 368;
Brown v. Butler, 71 Conn. 583; Eigbee v. Dresser, 103 Mass. 523;
Blount v. Kimpton, 155 Mass. 378; Anonymous, 8 Mass. 370; Foster
v. #aM, 12 Pick. (Mass.) 89; Eatton v. Robinson, 14 Pick. (Mass.)
416; Barnes v. Harris, 7 Cush. (Mass.) 576.
A lawyer acting as a mere scrivener is not within the rule. Han-
Ion v. Doherty, 109 Ind. 37; Smith v. Long, 106 111. 485; Stallings
v. Hullum, 79 Tex. 421; Childs v. Merrill, 66 Vt. 302; Todd v. Mtm-
son, 53 Conn. 579. See Carter v. Wesf, 93 Ky. 211.
He must be acting as an attorney. Coon v. Swan, 30 Vt. 6.
Law students who are not clerks are not within the rule. Schub-
kagel v. Dierstein, 31 Pa. St. 46; Holman v. Kimball, 22 Vt. 555;
Barnes v. Harris, 7 Cush. (Mass.) 576. Nor those supposed to be
lawyers, who in fact are not. Barnes v. Harris, 7 Cush. (Mass.) 576;
Halves v. State, 88 Ala. 37.
The rule does not apply to suits involving the construction of
the client's will. Doherty v. O'Callaghan, 157 Mass. 90.
The rule does not exclude the testimony as to a public fact, al-
though it would not have been learned but for the employment.
Com. v. Bacon, 135 Mass. 521.
The fact that the client takes the stand does not constitute con-
sent to the attorney to testify. Montgomery v. Pickering, 116
Mass. 227.
Where a client requests an attorney to obtain information as to
facts, with reference to an estate in settlement, the communication
is not privileged. Turner's Appeal, 72 Conn. 319. See also Allen v.
Hartford Life Ins. Co., 72 Conn. 696 ; Goddard v. Gardner, 28 Conn.
175.
Waiver. — The client may waive his right and allow the attorney
to testify. Hunt v. Blackburn, 128 U. S. 464; Passmore v. Pass-
more's Estate, 50 Mich. 626; Sleeper v. Abbott, 60 N. H. 162.
Learned from outside sources. — Daniel v. Daniel, 39 Pa. St. 191;
Swaim v. Humphreys, 42 111. App. 370 ; Jennings v. Sturdevant, 140
Ind. 641; Theisen v. Dayton, 82 la. 74; State v. Fitzgerald, 68 Vt.
125; Brady v. State, 39 Neb. 529. See Carroll v. Sprague, 59 Cal.
655; Turner's Estate, 167 Pa. St. 609; Hughes v. Boone, 102 N. C.
137.
Criminal purpose. — Whether an attorney to whom a criminal
project has been confided by his client may divulge it, qucere.
554 A DIGEST OF [Pabt III.
People v. Van Alstine, 57 Mich. 69; Orman v. State, 22 Tex. App.
604; State v. Kidd, 89 la. 54; Eamil v. England, 50 Mo. App. 333;
State v. Barrows, 52 Conn. 325.
Witnesses.- A person who overhears may testify. People v. Bu-
chanan, 145 N. Y. 1.
The communication must relate to his professional employment.
Howell v. Van Buren, 77 Hun, 569; Rosseau v. Blean, 131 N. Y. 177.
An attorney may testify that he acted as such. Hampton v. Boy-
Ian, 46 Hun, 151. And for whom. Mulford v. Muller, 3 Abb. Dec.
330.
A communication in the presence of the adverse party is not within
the rule. Hurlbut v. Hurlbut, 128 N. Y. 420.
Clerks, etc. — Communications to lawyers' employees are within
the rule. Jackson v. French, 3 Wend. 337; Sibley v. Waffle, 16 N. Y.
180.
Testimony as to existence of relation. — An attorney may testify
as to the existence of the relation of attorney and client. Lein-
decker v. Waldron, 52 111. 283.
Who is an attorney. — Communications to be privileged must be
made to an attorney as an attorney. Borum v. Fouts, 15 Ind. 50.
A lawyer acting as a mere scrivener is not within the rule. Han-
Ion v. Doherty, 109 Ind. 37; Borum v. Fouts, 15 Ind. 50; Thomas
v. Griffen, 1 Ind. App. 457.
A fee is not necessary to the privilege of an attorney. Reed v.
Smith, 2 Ind. 160.
Communications to a prosecuting attorney with reference to
crimes are privileged. Oliver v. Pate, 43 Ind. 132; State v. Van
Buskirk, 59 Ind. 384.
Communications made to an attorney before his employment are
not protected. Jennings v. Sturdevant, 140 Ind. 641.
Communications to a notary are not privileged. Lukin v. Hal-
derson, 24 Ind. App. 645.
By testator. — Communications by a testator to his attorney, with
reference to hi3 will, are not protected after the former's death.
Kern v. Kern, 154 Ind. 29, modifying Gurley v. Park, 135 Ind. 440;
McDonald v. McDonald, 142 Ind. 55.
In will contests, the attorney may testify as to the communica-
tions of his client, the testator. Pence v. Waugh, 135 Ind. 143.
Chap. XV.] THE LAW OF EVIDENCE. 555
In presence of adverse party. — Where a communication to an at-
torney is in the presence of the adverse party it is not privileged.
Hanlon v. Doherty, 109 Ind. 37.
New Jersey.
Waiver. — Client may waive the privilege. Sayre v. Sayre, 2
Green, 487.
Communications to attorney not privileged when he is in the
employ of both parties as to the matter communicated. Gulick v.
Uulick, 39 N. J. Eq. 516.
Fraud and crime. — An attorney is a competent witness as to mat-
ters confided to him by his client when the latter consults him with
a criminal or fraudulent object in view, whether the attorney is a
particeps criminis or not. Hattheivs v. Hoagland, 48 N. J. Eq. 455.
Presence of third person. — Communications between a client and a
third person in the presence of the attorney are not privileged.
Carr v. Weld, 19 N. J. Eq. 319; Roper v. State, 58 N. J. L. 420.
Maryland.
Authorities. — Salmon v. Clagett, 3 Bland, 125.
The rule applies even though the client is not a party to the suit
in question. Hodges v. Mullikin, 1 Bland, 503.
A letter from the client to the attorney with reference to bringing
suit is a privileged communication. Hunter v. Van Bomhorst, 1
Md. 504.
Communications in regard to office business must be no more
divulged by the attorney than if made in relation to a pending suit.
Crane v. Barkdoll, 59 Md. 534 (drawing deeds) ; Chew v. Bank, 2
Md. Ch. 231 (drawing will).
A lawyer's testimony that he brought a suit, recovered judgment,
collected the amount and paid it to one to whom his client had
assigned it is not within the privilege. Fulton v. Maccracken, 18
Md. 528.
Waiver of privilege. — The privilege is the client's and he may
waive it and make the attorney a competent witness. Chase's Case,
1 Bland, 206.
556 A DIGEST OF [Pabt III.
Pennsylvania.
See statute. — Pepper & Lewis' Digest of Laws, "Criminal Pro
eedure," sec. 83; "Witnesses," sec. 13.
An attorney is not competent to testify to confidential communi-
cations between himself and his client. Heister v. Davis, 3 Yeates,
4; Beltzhoover v. Blackstock, 3 Watts, 20; Hill's Estate, 9 Phila.
355; Paxton v. Steckel, 2 Pa. 93; Moore v. Bray, 10 Pa. 519; Miller
v. Weeks, 22 Pa. 89.
Presence of third party. — Communications in the presence of a
third party are not privileged. Hummell v. Kistner, 182 Pa. 210.
Communications made in the presence of the opposite party.
Goodwin Co.'s Appeal, 117 Pa. 514.
An attorney may testify as to an agreement made in open court
by the parties and their counsel, as it is not confidential. Kramer
V. Eister, 187 Pa. 227; Levers v. Van Buskirk, 4 Pa. 309.
Matters not privileged. — Privilege of an attorney extends only to
confidential communications. The mere fact of his employment as-
attorney is not privileged. Sargent v. Johns, 20G Pa. 386.
An attorney may testify as to communications of his client not
made by virtue of their relationship as attorney and client. Beaton
v. Findlay, 12 Pa. 304; Beeson v. Beeson, 9 Pa. 279.
An attorney is competent to testify as to his client's mental
capacity on an issue devisavit vel non. Daniel v. Daniel, 39 Pa.
191.
When the attorney is interested jointly with the client in the
matter communicated, such communication is not privileged. Jeanes
v. Fridenburgh, 5 Penn. L. J. 65.
Where several employ an attorney concerning the same business,
communications to him by them are not privileged inter se9e. Seip's
Estate. 163 Pa. 423.
Learned from outside sources. — Daniel v. Daniel, 39 Pa. St. 191;
See Turner's Estate. 167 Pa. 609. ■
Others than lawyers. — Law students who are not clerks are not
within the rule. Schubkagel v. Dierstein, 131 Pa. 46.
A conveyancer is not privileged. Matthews' Estate, 1 Phila. 292;
fif. C, 5 Clark. 149.
Question for the court. — The attorney is not the judge as tc*
whether a communication is privileged; that is for the trial court.
Jeanes v. Fridenberg, 3 Clark, 199.
Chap. XV.] THE LAW OF EVIDENCE. 557
Article 116.
confidential communications with legal advisees.
"No one can be compelled to disclose to the Court any
communication between himself and his legal adviser,
which his legal adviser could not disclose without his per-
mission, although it may have been made before any dis-
pute arose as to the matter referred to; 28 but communica-
tions between a third party and a legal adviser are not
protected unless the third party is acting as the agent of
the person seeking advice, or the communications are made
in contemplation of litigation, or for the purpose of giving
advice or obtaining evidence with reference to it. 29
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 240,
240a; Weeks on Attorneys-at-Lavv (2d ed.), sec. 162.
First paragraph of text. Barker v. Kuhn, 38 la. 392; Swenk v.
People, 20 111. App. Ill; Verdelli v. Gray's Harbor Co., 115 Cal. 517;
Duttenhofer v. State, 34 0. St. 91; Hemenway v. Smith, 28 Vt. 701,
706.
If the party takes the stand he can be compelled to testify on
cross-examination to communications with his counsel. Inhabit-
ants of Woburn v. Henshaw, 101 Mass. 193, 200, 3 Am. Rep. 333.
28 Minet v. Morgan, 1873, 8 Ch. App. 361, reviewing all the cases,
iind adopting the explanation given in Pearsc v. Pearse, 1846, 1 De G.
& S. 18-31, of Radcliffe v. Fursman, 1730, 2 Br. P. C. 514. An illus-
tration will be found in Mayor of Bristol v. Cox, 1884, 26 Ch. Div.
€78.
29 Wheeler v. he Marchant, 1881, 17 Ch. D. 675. See, too, Calcraft
Quest, [1898], 1 Q. B. 759.
558 A DIGEST OF [Part III.
Statements made to an attorney, with a view to employing him,
have been held within the rule, although he was never in fact
employed. State v. Lolly, 102 Ala. 25; Denver Tramway Co. v.
Owens, 20 Col. 107; Sargent v. Hampden, 38 Me. 581.
One who overhears the conversation between attorney and client
may testify. Hoy v. Morris, 13 Gray (Mass.), 519; Tyler v. Hall,
106 Mo. 313; Goddard v. Gardner, 28 Conn. 172.
A bill of particulars prepared by a layman, by direction of the
client, and handed by him to the attorney, who did not make use
of it, is not a privileged communication. Pulford's Appeal, 48
Conn. 249.
First paragraph of text. — Duttenhofer v. State, 34 Ohio St. 91, 95.
When relation exists. — To entitle communications to be considered
as confidential and privileged, the relation of client and attorney
must exist. Granger v. Warrington, 3 Gilm. 299; De Wolf v.
Strader, 26 111. 225; C, F., R. & B. Co. v. Jameson, 48 111. 281;
Staley v. Dodge, 50 111. 43; People v. Barker, 56 111. 299.
Communications to one not a licensed attorney are not privileged.
McLaughlin v. Gilmore, 1 Brad. 563.
In order that the privilege exist, one must be consulted as an at-
torney, not as a mere friend. Smith v. Long, 106 111. 485; Goltra
v. Wolcott, 14 111. 89.
Communications between friends are not privileged. Goltra v.
Wolcott, 14 111. 89.
There is no objection to having the plaintiff's attorney swear as
to calculation of interest. Stratton v. Henderson, 26 111. 69.
Waiver. — If one voluntarily testifies as to communications with
his attorney, he may be cross-examined fully. Swenk v. People, 20
111. App. 111.
Letters. — Letters from attorneys to their clients are not admis-
sible, higleheart v. Jernegan, 16 111. 513.
Bill sworn to. — A bill sworn to but never filed is a privileged
communication. Burnham v. Roberts, 70 111. 19.
Chap. XV.] THE LAW OF EVIDENCE. 559
Article 117.*
clergymen and medical men.
Medical men 30 and [probably] clergymen may be com-
pelled to disclose communications made to them in pro-
fessional confidence.
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 247, 248;
McKelvey on Evidence, p. 295. But a different rule has been estab-
lished by statute in many States.
Physicians. — Thompson v. Ish, 99 Mo. 160, 17 Am. St. Rep. 552, n.;
Heuston v. Simpson, 115 Ind. 62; Gartside v. Com. Life Ins. Co., 76
Mo. 446; People v. West, 106 Cal. 89; Conn. Life Ins. Co. v. Union
Trust Co., 117 U. S. 250; Gurley v. Park, 135 Ind. 440; Kansas City,
etc., R. Co. v. Murray, 55 Kan. 336.
Clergymen. — Gillooley v. State, 58 Ind. 182; Com. v. Drake, 15
Mass. 161.
The burden of showing disqualification is upon the person object-
ing. People v. Koerner, 154 N. Y. 355.
Article 118.
production of title-deeds of witness not a party.
No witness who is not a party to a suit can be compelled
to produce his title-deeds to any property, 31 or any docu-
ment the production of which might tend to criminate
* See Note XLIV.
30 Duchess of Kingston's Case, 1776, 20 S. T. 572-3. As to clergy-
men, see Note XLTV.
31 Pickering v. Noyes, 1823, 1 B. & C. 263; Adams v. Lloyd, 1858,
3 H. & N. 351.
500 A DIGEST OF [Part III.
him, or expose him to any penalty or forfeiture; 32 but a
witness is not entitled to refuse to produce a document in
his possession only because its production may expose him
to a civil action, 33 or because he has lien upon it. 34
No bank is compellable to produce the books of such
bank, except in the case provided for in Article 37. 35
AMERICAN NOTE.
General.
Authorities. — 1 Wharton on Evidence, sees. 377, 537 ; 1 Green-
leaf on Evidence (15th ed.), sees. 246, 451, 453; Machine Co. v. Bat-
chelder, 68 Vt. 431; Thompson v. Engle, 4 N. J. Eq. 271; Cullison v.
Bossom, 1 Md. Ch. 95 ; First Nat. Bank v. Hughes, 6 Fed. Rep. 741 ;
Bull v. Loveland, 10 Pick. (Mass.) 9, 14; Burnham v. Morissey, 14
Gray (Mass.), 226; Adams v. Porter, 1 Cush. (Mass.) 170. See Les-
ter v. People, 150 111. 408, 41 Am. St. Rep. 375, 388, n.
See Davenbagh v. M'Kennie, 5 Cow. 27 ; Bonesteel v. Lynde, 8
How. Pr. 226, 352; Lane v. Cole, 12 Barb. 680.
New Jersey.
Authority. — Thompson v. Engle, 4 N. J. Eq. 271.
32 Whitalcer v. Izod, 1809, 2 Tau. 115.
33 Doe v. Date, 1842, 3 Q. B. 609, 618.
34 Uope v. Liddell, 1855, 7 De G. M. & G. 331 ; Hunter v. Leathley,
1830, 10 B. & C. 858; Brassington v. Brassington, 1823, 1 Si. & Stu.
455. It has been doubted whether production may not be refused on
the ground of a lien as against the party requiring the production.
This is suggested in Brassington v. Brassington, and was acted upon
by Lord Denman in Kemp v. King, 1842, 2 Mo. & Ro. 437; but it
seems to be opposed to Hunter v. Leathley, 1830, 10 B. & C. 858, in
which a broker who had a lien on a policy for premiums advanced
was compelled to produce it in an action against the underwriter by
the assured who had created the lien. See Ley v. Barlow, 1848 (per
Parke, B.) 5 1 Ex. 801.
35 42 & 43 Vict. c. 11.
€hap. XV.] THE LAW OF EVIDENCE. 561
Maryland.
Authority. — Cullison v. Bossom, 1 Md. Ch. 95.
Pennsylvania.
Criminating documents. — Boyle v. Smithman, 146 Pa. 255.
Exposure to penalty. — A bank cannot be compelled to produce its
books in a suit to recover a penalty for usury. Union Glass Go. v.
Bank, 10 Pa. Co. Ct. 574.
Article 119.
production of documents which another person,
having possession, could refuse to produce.
No solicitor, 36 trustee, or mortgagee can be compelled to
produce (except for the purpose of identification) docu-
ments in his possession as such, which his client, cestui
que trust, or mortgagor would he entitled to refuse to
produce if they were in his possession ; nor can any one
who is entitled to refuse to produce a document be com-
pelled to give oral evidence of its contents. 37
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 241, 246;
Weeks on Attorney-at-Law (2d ed.), sec. 163; Wertheim v. Conti-
nental R. Co., 15 Fed. Rep. 716; Harrisburg Car Co. v. Sloan, 120
Ind. 156; Steed v. Cruise, 70 Ga. 168. See Pulford's Appeal, 48 Conn.
247.
He can be compelled to testify as to the existence of the paper.
Lease of Rhoades v. Selin, 4 Wash. C. C. 715; Stokoe v. St. Paul,
36 Volant v. Soyer, 1853, 13 C. B. 231 ; Phelps v. Prew, 1854, 3 E. &
B. 431.
37 Davies v. Waters, 1842, 9 M. & W. 608; Few v. Guppy, 1834,
13 Beav. 457.
36
562 A DIGEST OF [Past III.
etc., R. Co., 40 Minn. 545; Westcott v. Atlantic Co., 3 Mete. (Mass.)
282; Durkee v. Leland, 4 Vt. 612.
He may be compelled to testify as to the existence of the papers,
Coveney v. Tannahill, 1 Hill, 33, 37 Am. Dec. 287.
Pennsylvania.
A report prepared by defendant's agent for use by counsel in the
trial of the case need not be produced. Davenport Co. v. Railroad
Co., 166 Pa. 480.
Article 120.
witness not to be compelled to criminate himself.
No one is bound to answer any question if the answer
thereto would, in the opinion of the judge, have a tendency
to expose the witness [or the wife or husband of the wit-
ness] to any criminal charge, or to any penalty or forfeit-
ure which the judge regards as reasonably likely to be
preferred or sued for; 38 but no one is excused from an-
swering any question only because the answer may estab-
lish or tend to establish that he owes a debt, or is other-
38 R. v. Boyes, 1861, 1 B. & S. 330; followed and approved in Ear
parte Reynolds, 1882, by the Court of Appeal; see 20 Ch. Div. 298.
As to husbands and wives, see 1 Hale, P. C. 301 ; R. v. Cliviger, 1788,
2 T. R. 263; Cartioright v. Green, 1803, 8 Ve. 405; R. v. Bathwick.
1831, 2 B. & Ad. 639; R. v. All Saints, Worcester, 1817, 6 M. & S.
194. These cases show that even under the old law which made the
parties and their husbands and wives incompetent witnesses, a wife
was not incompetent to prove matter which might tend to incriminate
her husband. R. v. Cliviger assumes that she was, and was to that
extent overruled. As to the later law, see R. v. Halliday, 1860, Bell r
257. The cases, however, do not decide that if the wife claimed the
privilege of not answering she would be compelled to do so, and to
some extent they suggest that she would not.
Chap. XV.] THE LAW OF EVIDENCE. 56$
■wise liable to any civil suit, either at the instance of the
Crown or of any other person. 39
A person charged with an offence and being a witness in
pursuance of the Criminal Evidence Act, 1898, may be
asked any question in cross-examination, notwithstanding
that it would tend to criminate him as to the offence
charged. 40
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 451-453;
Wharton on Evidence, sees. 533-541.
Exemption. — First paragraph of text. Eckstein's Petition, 148
Pa. St. 509 ; Temple v. Com., 75 Va. 892 ; State v. Simmons Co., 109
Mo. 118; Stevens v. State, 50 Kan. 712; Winters v. People, 139 111..
363; State v. Baden, 43 Minn. 253; Ex parte Boscowitz, 84 Ala„
463; Coburn v. Odell, 30 N. H. 540; Janvrin v. Scamaron, 29 N. H.
280; Chamberlain v. Wilson, 12 Vt. 491; Emery's Case, 107 Mass.
172; Com. v. Trider, 143 Mass. 180.
A witness cannot be compelled to disclose facts which would
subject him to a criminal prosecution. Grannis v. Branden, 5
Day (Conn.), 272; Barnes v. State, 19 Conn. 404.
On a prosecution for selling liquor to a common drunkard, the
person claimed to be such was a witness for the State to prove the
sale, and was asked, upon cross-examination, if he was a common
drunkard. Held, that he was not bound to answer, as an answer
might criminate him. Barnes v. State, 19 Conn. 404.
The rule does not apply if the criminal prosecution is barred by
lapse of time. Lamson v. Boyden, 160 111. 613; Mahanke v. Cleland,
76 la. 401 ; Childs v. Merrill, 66 Vt. 302. Or statute granting an ex-
emption to such witness. Brown v. Walker, 161 U. S. 591; Ex parte
Cohen, 104 Cal. 524; State v. Noivell, 58 N. H. 314.
39 46 Geo. III. c. 37. See R. v. Scott, 1856, 25 L. J. M. C. 128, and
subsequent cases as to bankrupts, and Ex parte Scholfield, 1877, 6
Ch. Div. 230. Quaere, Is he bound to produce a document incriminat-
ing himself? See Webb v. East, 1880, 5 Ex. D. 23 & 108.
40 61 & 62 Vict. c. 36, s. 1 (e).
564 A DIGEST OF [Part III.
The court may, but need not, advise the witness of his right to
refuse to answer. Com. v. Howe, 13 Gray (Mass.), 26; Com. v. Shaw,
4 Cush. (Mass.) 594; Mayo v. Mayo, 119 Mass. 292.
Penalty. — A witness cannot be compelled to give testimony which
may expose him to a penalty. Nor, it seems, to give testimony which
may subject him to a debt, although called as a witness in a suit be-
tween third parties. Benjamin v. Hathaway, 3 Conn. 532.
Husband or wife-. — Cornelius v. Hambay, 150 Pa. St. 359; Keep v.
Griggs, 12 111. App. 511; People v. Langtree, 64 Cal. 256; Woods v.
State, 76 Ala. 35; Com. v. Sparks, 7 Allen (Mass.), 534; State v.
Bridgman, 49 Vt. 202; State v. Briggs, 9 R. I. 361.
Waiver. — The privilege may be waived. State v. Wentworth, 65
Me. 234; Samuel v. People, 164 111. 379; State v. Van Winkle, 80 la.
15; State v. Foster, 23 N. H. 348; Foster v. Pierce, 11 Cush. (Mass.)
437, 59 Am. Dec. 152; Com. v. Nichols, 114 Mass. 285, 19 Am. Rep.
346; Com. v. Morgan, 107 Mass. 199.
By testifying as to part, the witness waives his protection and
can be compelled to testify as to the whole. People v. Freshour, 55
Cal. 375; State v. Fay, 43 la. 561; State v. Nichols, 29 Minn. 357;
Coburn v. Odell, 30 N. H. 540; State v. Witham, 72 Me. 531; Com. v.
Pratt, 126 Mass. 462; Com. v. Nichols, 114 Mass. 285; Com. v. Smith,
163 Mass. 431. See Samuel v. People, 164 111. 379.
The witness, by taking the stand, waives his protection. Disque
v. State, 49 N. J. L. 249 ; Thomas v. State, 103 Ind. 419 ; Thomas v.
State, 100 Ala. 53; State v. Thomas, 98 N. C. 599; People v. Wong
Ah Leorg, 99 Cal. 440 ; State v. Witham, 72 Me. 531 ; State v. Gris-
loold, 67 Conn. 307.
Where a witness voluntarily testifies in chief on a particular
subject, he may be cross-examined on the same subject, although
his answers may criminate or disgrace him. Norfolk v. Gaylord,
28 Conn. 312.
Civil liability. — ■ Sustaining text. Bull v. Loveland, 10 Pick.
'(Mass.) 9, 12; Lees v. U. S., 150 U. S. 476; Gadsden v. Woodward,
103 X. Y. 242; Lowney v. Perham, 20 Me. 235.
Exposure to penalty. — Sustaining text. Livingston v. Tompkins,
4 Johns. Ch. 432; Livingston v. Harris, 3 Paige, 533, 11 Wend. 329;
Matter of Kip, 1 Paige, 601 ; People v. Rector, 19 Wend. 569 ; Mat-
ter of Dickinson, 58 How. Pr. 260.
Exemption. — First paragraph of text. Winters v. People, 139
111. 363.
Chap. XV.] THE LAW OF EYIDEXCE. 565
A defendant may not give testimony which will criminate him,
nor need he produce documents which would have that effect.
Lampson v. Boyden, 160 111. 613.
Caution. — The court may caution a witness that he need not in-
criminate himself. Eggers v. Fox, 177 111. 185, 52 N. E. 269.
Prosecution barred. — One cannot refuse to answer on the ground
that the evidence would incriminate himself if the prosecution would
be barred by lapse of time. Prussing v. Jackson, 85 111. App. 324;
Lamson v. Boyden, 160 111. 613.
Testimony tending to disgrace. — A witness cannot refuse to an-
swer on the ground that his testimony would disgrace him. Wei-
don v. Burch, 12 111. 374.
Questions may be asked on cross-examination which tend to dis-
grace a witness. City v. Hardy, 98 Ind. 577.
New Jersey.
Statute. — Witnesses need not answer questions exposing them
to criminal prosecution, penalty, or forfeiture of estate. G. S. 1895,
"Evidence," 10.
Waiver. — The witness, by taking the stand, waives his protection.
Disque v. State, 49 N. J. L. 249.
Husband and wife. — State v. Wilson, 31 N. J. L. 77.
Legislative investigations. — No privilege in investigations before
legislative committees. G. S. 1895, " Evidence," 75.
Privilege denied in cases of fraud. — G. S. 1895, "Crimes," 158.
Maryland.
General rule. — Taney v. Kemp, 4 II. & J. 349.
A party indicted for fraud cannot be compelled to produce his
books of account as evidence against himself. Blum v. State, 94
Md. 375.
It is for the court to say whether or not the answer to a ques-
tion is likely to incriminate him. Chesapeake Club v. State, 63
Md. 446.
Gambling cases. — This privilege taken away in gambling cases.
P. G. L. 1888, art. 27, sec. 131.
Exposure to civil suit. — A witness may be compelled to answer,
though it may tend to render him liable in a civil action to some
506 A DIGEST OF [Part III.
penalty or loss. Hays v. Richardson, 1 G. & J. 366; Naylor v.
Semmes, 4 G. & J. 274; Taney v. Kemp, 4 H. & J. 349.
A witness is not excused merely because his answer would be
against his interest. Stoddart v. Manning, 2 H. & J. 147.
Personal privilege of witness. — A witness may refuse to answer a
question that tends to incriminate him; but this is his personal
privilege, not that of the party calling him as a witness. Chesa-
peake Club v. State, 63 Md. 446.
Waiver. — When the accused in a criminal case takes the stand,
he waives his right to refuse to answer questions tending to expose
him to penal liability. Guy v. State, 90 Md. 29.
When a party plaintiff takes the stand he is held to have waived
his privilege as to criminating questions. Roddy v. Finnegan, 43
Md. 490.
Penns.ylvania.
Const, of Pa., art. I, sec. 9.
Exemption. — First paragraph of text. Eckstein's Petition, 148
Pa. 509; Ex parte Doran, 2 Pars. 467.
When a witness refuses to answer a question on the ground that
it may criminate him, no inference can properly be drawn from
such refusal. Phelin v. Kenderdine, 20 Pa. 354.
A court will compel the production of the books of a corporation
even though the entries made therein by one of the parties to the
suit may tend to criminate him. McElree v. Darlington, 187 Pa.
593.
Husband or wife. — Cornelius v. Hamoay, 150 Pa. 359.
A wife need not answer questions incriminating her husband.
Com. v. Reid, 8 Phila. 385.
When a statute permits a wife to testify for her husband, s,he
may be compelled in cross-examination to testify against him.
Balentine v. White, 77 Pa. 20.
Election contests. — The rule does not apply in contested election
cases. Const, of Pa., art. VIII, sec. 10: Pepper & Lewis' Digest of
Laws. " Contested Elections," sec. 41.
A witness can be compelled to answer incriminating questions in
contested election cases, because he is protected by the Bill of Rights.
Kelly's Contested Election, 200 Pa. 430.
Question for the court. — The criminating tendency of a question
is for the trial judge. He may compel witness to answer, but in
Chap. XV.] TEE LAW OF EVIDENCE. ' 567
such case the answer cannot ever be used against the witness. Com.
v. Bell, 145 Pa. 374.
Testimony wrongfully obtained from the witness by the court can-
not be used against him. Horstman v. Kaufman, 97 Pa. 147.
Article 121.
corroboration when required.*
No plaintiff in any action for breach of promise of
marriage can recover a verdict, unless his or her testimony
is corroborated by some other material evidence in support
•of such promise. 41 The fact that the defendant did not
answer letters affirming that he had promised to marry the
plaintiff is not such corroboration. 42
JSTo order against any person alleged to be the father of a
bastard child can be made by any justices, or confirmed on
appeal by any Court of Quarter Session, unless the evi-
dence of the mother of the said bastard child is corrobo-
rated in some material particular to the satisfaction of the
said justices or Court respectively. 43
jSTo person can be convicted of an offence against sect. 4
of the Criminal Law Amendment Act, 1885, or an offence
against the Prevention of Cruelty to Children Act, 1894,
or an offence mentioned in the Schedule to that Act (as to
which see p. 347, note 11, upon the unsworn evidence of
a child of tender years, unless such unsworn evidence is
* See Article 122.
41 32 & 33 Vict. c. 68, s. 2.
^Wiedemann v. Walpole, [1891], 2 Q. B. 534.
43 8 & 9 Vict. c. 10, s. 6 ; 35 & 36 Vict. c. 6, s. 4.
568 . A DIGEST OF [Pabt III.
corroborated by material evidence implicating the ac-
cused. 44
When the only proof against a person charged with a
criminal offence is the evidence of an accomplice, uncor-
roborated in any material particular, it is the duty of the
judge to warn the jury that it is unsafe to convict any
person upon such evidence, though they have a legal right
to do so. 45
AMERICAN NOTE.
General.
Authorities. — 1 Wharton on Evidence, sec. 414; 1 Greenleaf on
Evidence (15th ed.), sees. 379-382; 1 Am. & Eng. Encyclopaedia of
Law (2d ed.), p. 399.
The jury may convict on uncorroborated testimony. Cox v. Com. T
125 Pa. St. 24; Hoyt v. People, 140 111. 588; Ayers v. State, 88 Ind.
275; People v. Gallagher, 75 Mich. 512; Campbell v. People, 159 111.
9; Lamb v. State, 40 Neb. 312; State v. Maney, 54 Conn. 178; State
v. Wolcott, 21 Conn. 272; State v. Stebbins, 29 Conn. 463, 79 Am. Dec.
223; State v. Williamson, 42 Conn. 261; State v. Potter, 42 Vt. 495;
State v. Dana, 59 Vt. 614; State v. Litchfield, 58 Me. 270; State v.
Cunningham, 31 Me. 355; State v. Kibling, 63 Vt. 636; Com. v. Bos-
worth, 22 Pick. (Mass.) 397; Com. v. Larrabee, 99 Mass. 413; Com.
v. Scott, 123 Mass. 237, 25 Am. Rep. 81 ; Com. v. Holmes, 127 Mass.
424, 34 Am. Rep. 391.
In some States it is the practice to warn the jury. Collins v. State,
98 111. 584; Cheathem v. State, 67 Miss. 335; State v. Barber, 113
N. C. 711; Ingalls v. State, 48 Wis. 647; Com. v. Price, 10 Gray
(Mass.), 472, 71 Am. Dec. 668; Com. v. Brooks, 9 Gray (Mass.),
299; Com. v. Larrabee, 99 Mass. 413; State v. Kibling, 63 Vt. 636.
It is held in some States that it is not error to omit the caution.
State v. Potter, 42 Vt. 495; State v. Kibling, 63 Vt. 636; Com. v.
«48 & 49 Vict. c. 69, s. 4; 57 & 58 Vict. c. 41, s. 15. See Article
123a.
45 1 Ph. Ev. 93-101; Taylor, ss. 967-971; 3 Russ. Cri. 642-653.
See In re Meunier, [1894], 2 Q. B. 415.
Chap. XV.] THE LAW OF EVIDENCE. 569
Holmes, 127 Mass. 424, 34 Am. Rep. 391 ; Com. v. Scott, 123 Mass.
237, 25 Am. Rep. 81; Com. v. Wilson, 152 Mass. 12; Com. v. Bishop,
165 Mass. 148. But see State v. Williamson, 42 Conn. 261; State v.
Maney, 54 Conn. 178.
Detectives and others who act with the criminals, in order to
bring them to justice, are not accomplices. State v. McKean, 36 la.
343; People v. Bolanger, 71 Cal. 17; Com. v. Hollister, 157 Pa. St.
13; State v. Hoxsie, 15 R. I. 1.
Any evidence is corroborative which tends to connect the defend-
ant with the crime. State v. Donnelly, 130 Mo. 642; Hester v. Com.,
85 Pa. St. 139; State v. Maney, 54 Conn. 178. See U. S. v. Howell,
56 Fed. Rep. 20; Com. v. Holmes, 127 Mass. 424.
One accomplice cannot corroborate another, unless, perhaps, they
have had no opportunity to be together before the trial. State v.
Williamson, 42 Conn. 265, 266.
Generally divorces will not be granted upon the testimony of
parties alone. Robbins v. Bobbins, 100 Mass. 150; Cooper v. Cooper,
88 Cal. 45; Lewis v. Lewis, 75 Pa. 200; Rie v. Rie, 34 Ark. 37. Con-
tra, Flattery v. Flattery, 88 Pa. St. 27; Sylvis v. Sylvis, 11 Col. 319.
Breach of promise. — Modifying rule of text. Homan v. Earle, 53
N. Y. 267.
Seduction. — Corroboration is required in a prosecution for seduc-
tion. People v. Kearney, 110 N. Y. 188.
Accomplice. — Conviction may be had upon the uncorroborated tes-
timony of an accomplice. Cross v. People, 47 111. 152; Friedberg
v. People, 102 111. 160.
An accomplice is a competent witness. Earll v. People, 73 111.
330 ; Collins v. People, 98 111. 584.
An uncorroborated accomplice is a competent witness. Cray v.
People, 26 111. 344; Friedberg v. People, 102 111. 1G0.
Bastardy. — In a prosecution for bastardy, the testimony of the
complainant must be corroborated. People v. Chrisman, 66 111. 162;
McCoy v. People, 65 111. 439.
New Jersey.
What are corroborating circumstances. — State v. Guild, 10 N. J. L.
163.
Seduction. — Corroborative evidence required to prove seduction.
Zabriskie v. State, 43 N. J. L. 640.
In prosecution for seduction the subsequent conduct and conversa-
570 A DIGEST OF [Pabt III.
tions of the defendant are admissible to corroborate the testimony
of prosecutrix. State v. Brown, 64 N. J. L. 414.
Marriage. — An admission of a marriage in an answer is sufficient
to prove it when corroborated. Dare v. Dare, 52 N. J. Eq. 195.
Accomplices. — Corroboration of the testimony of an accomplice is
advisable but not necessary. State v. Hyer, 39 N. J. L. 598.
Woman taking a potion to cause an abortion is not an accomplice.
State v. Hyer, 39 N. J. L. 598.
Confessions in criminal cases. — A confession is sufficient for con-
viction without corroboration if there be other evidence of the
corpus delicti. State v. Guild, 10 N. J. L. 163.
Divorce. — Corroborative evidence required in divorce cases. Mc-
Shane v. McShane, 45 N. J. Eq. 341; Summerbell v. Summerbell, 37
N. J. Eq. 603; McGrail v. McGrail, 48 N. J. Eq. 532.
Divorce not to be granted on uncorroborated testimony of com-
plainant. Woodworth v. Woodworth, 21 N. J. Eq. 251; Palmer v.
Palmer, 22 N. J. Eq. 88; Tate v. Tate, 26 N. J. Eq. 55; Belton v.
Belton, 26 X. J. Eq. 449; Cummins v. Cummins, 15 N. J. Eq. 138;
Mount v. Mount, 15 N. J. Eq. 162. So also adultery charged by the
defendant must be sustained by other proof than that of the de-
fendant alone. Reid v. Reid, 21 N. J. Eq. 251.
Confessions in divorce cases are to be taken with great caution
and should be held insufficient unless corroborated. 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 N. J. Eq. 36.
In divorce, corroboration of the petitioner is necessary to prove
desertion. Pullcn v. Pullen, 29 N. J. Eq. 541; Sandford v. Sand-
ford, 32 N. J. Eq. 420.
Maryland.
Proof of one's own declarations is not admissible to corroborate.
P. G. L. 1888, art. 35, sec. 2.
Divorce, etc.— Testimony of plaintiff must be corroborated in ac-
tions for adultery, divorce, and breach of promise of marriage.
P. G. L. 1888. art. 35, sec. 3.
Pennsylvania.
In equity. — A written instrument will not be reformed on the
uncorroborated testimony of one witness. Sutch's Estate (No. 1) ,
201 Pa. 305.
Chap. XV.] THE LAW OF EVIDENCE. 571
Accomplices. — Evidence corroborating an accomplice must tend to
connect the accused with the crime. Watson v. Com., 95 Pa. 418;
Cox v. Com., 125 Pa. 94.
An accomplice need not be corroborated in every detail. Ettinger
v. Com., 98 Pa. 338.
Detectives and others who act with the criminals, in order to
bring them to justice, are not accomplices. Com. v. Hollister, 157
Pa. 13; Campbell v. Com., 84 Pa. 187.
Rape, seduction, etc. — ■ In rape, corroborative evidence should be
required, if possible. Com. v. Childs, 2 Pitts. 391.
Corroborative evidence required to prove seduction. Rice v. Com.,
100 Pa. 28.
Corpus delicti. — A confession is not sufficient for conviction with-
out other proof of the corpus delicti. Com. v. Hanlon, 8 Phila. 401;
Gray v. Com., 101 Pa. 380.
The jury may convict on uncorroborated testimony. Cox v. Com.,
125 Pa. 24.
Any evidence is corroborative which tends to connect the defend-
ant with the crime. Hester v. Com., 85 Pa. 139.
Divorce. — Instance of a divorce granted upon uncorroborated tes-
timony of a party. Flattery v. Flattery, 88 Pa. 27.
Article 121a.
claim on estate of deceased person.
Claims upon the estates of deceased persons, whether
founded upon an allegation of debt or of gift, ought not to
he maintained upon the uncorroborated testimony of the
claimant, unless circumstances appear or are proved which
make the claim antecedently probable, or throw the burden
of disproving it on the representatives of the deceased.
Illustrations,
(a) A, a widow, swore that her deceased husband gave her plate,
Ac, in his house, but no circumstances corroborated her allegation.
Her claim was rejected.46
46 Finch v. Finch, 1883, 23 Ch. Div. 267.
572 A DIGEST OF [Part III.
(o) A, a widow, claimed the rectification of a settlement drawn by
her husband the night before their marriage,- and giving him advan-
tages which, as she swore, she did not mean to give him, and were not
explained to her by him. The settlement was not one which, in the
absence of agreement between the parties, would have been sanctioned
by the Court. Her claim was admitted though uncorroborated.47
AMERICAN NOTE.
General.
See Hatch v. Atkinson, 56 Me. 324; Dilts v. Stevenson, 17 N. J.
Eq. 407; Farmer's Exr. v. Farmer, 39 N. J. Eq. 211.
Article 122.
number of witnesses.
In trials for high treason, or misprision of treason, no
one can be indicted, tried, or attainted (unless he pleads
guilty) except upon the oath of two lawful witnesses,
either both of them to the same overt act, or one of them
to one and another of them to another overt act of the
same treason. If two or more distinct treasons of divers
heads or kinds are alleged in one indictment, one witness
produced to prove one of the said treasons and another
witness produced to prove another of the said treasons are
not to be deemed to be two witnesses to the same treason
within the meaning of this article. 48
This provision does not apply to cases of high treason in
compassing or imagining the Queen's death, in which the
47 Livesey v. Smith, 1880, 15 Ch. Div. 655. In re Gamett, Gandy
v. Macaulay, 1885, 31 Ch. Div. 1, is a similar case. In In re Hodg-
son, Beckett v. Ramsdale, 1885, 31 Ch. Div. p. 183, the language ot
Hannen, J., in words somewhat relaxes the rule, but not, I think,
in substance.
48 7 & 8 Will. III. c. 3, ss. 2, 4.
Chap. XV. J THE LAW OF EYIDEXCE. 573
overt act or overt acts of such treason alleged in the indict-
ment are assassination or killing of the Queen, or any di-
rect attempt against her life, or any direct attempt against
her person, whereby her life may be endangered or her per-
son suffer bodily harm, 49 or to misprision of such treason.
If upon a trial for perjury the only evidence against the
defendant is the oath of one witness contradicting the oath
on which perjury is assigned, and if no circumstances are
proved which corroborate such witness, the defendant is
entitled to be acquitted. 50
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (loth ed.), sees. 255-259;
1 Wharton on Evidence, sec. 414.
Treason against the United States. Art. 3, sec. 3, of the U. S.
Constitution.
Perjury. — ■ Com. v. Parker, 2 Cush. (Mass.) 212.
In perjury, one witness, with corroborating circumstances, is suffi-
cient. Com. v. Parker, 2 Cush. (Mass.) 212; Com. v. Butland, 119
Mass. 317, 324; Com. v. Pollard, 12 Mete. (Mass.) 225; Williams v.
Com., 91 Pa. St. 493; People v. Wells, 103 Cal. 631; State v. Hawk-
ins, 115 N. C. 712; U. S. v. Hall, 44 Fed. Rep. 864; State v. Jean,
42 La. Ann. 946; State v. Head, 57 Mo. 252.
New Jersey.
Rule in chancery. — When one witness in support of allegations of
bill is not sufficient. Morris v. White, 36 N. J. Eq. 324.
Pennsylvania.
A single uncorroborated witness is sufficient to prove murder.
M chain v. Com., 99 Pa. 86.
To prove that a written contract has been changed by parol, testi-
mony equal in weight to that of two witnesses must be produced.
49 39 & 40 Geo. III. c. 93. 50 1 Russ. on Crimes, 368.
674 A DIGEST OF [PabiIH.
Pennsylvania Iron Co. v. Diller, 1 Atl. 924; Tlwmas v. Loose, 114
Pa. 35; Jones v. Backus, 114 Pa. 120; Day v. Osborn, 9 Atl. 643;
Beckett v. Allison, 188 Pa. 279.
Usage.— Business usage may be proved by one witness. Adams
v. Insurance Co., 95 Pa. 348.
Rule in chancery. — When one witness in support of allegations of
the bill is not sufficient. Smith v. Ewing, 151 Pa. 256.
Perjury, supporting text. — Williams v. Com., 91 Pa. 493.
Treason. — Respublica v. McCarty, 2 Dall. 86.
Chap. XVI.] THE LAW OF EVIDENCE. 575
CHAPTER XVI.
OF TAKING ORAL EVIDENCE, AND OF THE EXAMINATION
OF WITNESSES.
Article 123.
evidence to be upon" oath, except in certain cases.
All oral evidence given in any proceeding must be given
upon oath, except as is stated in this and the following
article.
Every person objecting to being sworn, and stating, as
the ground of such objection, either that he has no relig-
ious belief, or that the taking of an oath is contrary to his
religious belief, may make his solemn affirmation, which is
of the same force and effect as if he had taken the oath,
and if, having made such affirmation, he wilfully and cor-
ruptly gives false evidence, he is liable to be punished as
for perjury.
Such affirmation must be as follows: —
" I, A. B., do solemnly, sincerely, and truly declare and
affirm,"
and then proceed with the words of the oath prescribed by
law, omitting any words of imprecation or calling to wit-
ness. 1
Where an oath has been duly administered and taken,
the fact that the person to whom the same was adminis-
i 51 & 52 Vict. c. 46, the Oaths Act, 1888, which repeals the pre-
vious enactments on the subject.
576 A DIGEST OF {Part III.
tered had, at the time of taking such oath, no religions
belief, does not for any purpose affect the validity of such
oath. 2
AMERICAN NOTE.
General.
Authority. — 1 Greenleaf on Evidence (15th ed.), sec. 371.
Atheists. — See article 107 of this book.
It is enough to show that an oath was administered by one who
habitually did it, in the absence of proof that he was not properly
appointed an officer. Morrell v. People, 32 111. 499.
New Jersey.
Affirmation is not sufficient if the witness does not object to being
sworn. Williamson v. Carroll, 1 Harr. 217. When the record is
silent it is presumed that a witness was sworn. Doughty v. Read,
Pen. 901.
Witness competent though he does not believe God will punish
perjury. Percy v. Powers, 51 N. J. L. 432.
Maryland.
After judgment a party cannot object that certain evidence not
taken on oath was admitted. Nesoitt v. Dallam, 7 G. & J. 494.
Pennsylvania.
Statute. — Pepper & Lewis' Digest of Laws, " Oaths and Affirma-
tions."
Article 123a.
unsworn evidence of young child.
Where upon the hearing of a charge under sect. 4 of the
Criminal Law Amendment Act, 1885, a child of tender
years who is tendered as a witness does not, in the opinion
of the Court, understand the nature of an oath, the evi-
dence of such child may be received, though not given upon
oath, if, in the opinion of the Court, such child is possessed
2 51 & 52 Vict. c. 46, s. 3.
Chap. XVI.] THE LAW OF EVIDENCE. 577
of sufficient intelligence to justify the reception of the
evidence, and understands the duty of speaking the truth ; 3
Provided that no person can be convicted in such a case
unless such unsworn evidence is corroborated by other ma-
terial evidence implicating the accused. 3
Any witness whose evidence, not upon oath, has been
admitted as mentioned in this article is liable to indict-
ment and punishment for perjury in all respects as if he
or she had been sworn. 3
If evidence not upon oath is given under the provisions
stated in this article, and the charge is one of felony, the
prisoner may be convicted under sect. 9 of the Criminal
Law Amendment Act, 1885, of an offence 4 in respect of
which such unsworn evidence might not have been given. 5
If the charge is one of misdemeanour, the prisoner cannot
be convicted of another misdemeanour, in respect of which
such unsworn evidence might not have been given, if such
other misdemeanour was charged in another count of the
indictment. 6
Where, in any proceeding against any person for an
offence under the Prevention of Cruelty to Children Act,
1894, or for any of the offences mentioned in the Schedule
to that Act, 7 the child in respect of whom the offence is
3 48 & 49 Viet. c. 69, s. 4. The offences under this section are, un-
lawfully and carnally knowing, and attempting unlawfully and car-
nally to know any girl under thirteen.
4 These offences are, any offence under ss. 3, 4. 5 of the Criminal
Law Amendment Act, 1885, and indecent assault.
$ R. Wealand, 1888, 20 Q. B. D. 827. See Note XLIVa.
<3ff. v. Paul, [1S90], 25 Q. B. D. 202. See note XLIVa.
7 See p. 347, note 11.
37
578 A DIGEST OF [Part III.
charged to have been committed, or any other child of
tender years who is tendered as a witness, does not, in the
opinion of the Court, understand the nature of an oath,
the evidence of such child may be received, though not
given upon oath, if, in the opinion of the Court, such child
is possessed of sufficient intelligence to justify the recep-
tion of the evidence, and understands the duty of speaking
the truth.
And the evidence of such child, though not given on
oath, but otherwise taken and reduced into writing, in
accordance with the provisions of sect. 17 of the Indict-
able Offences Act, 1848, 8 or sect. 13 of the Prevention
of Cruelty to Children Act, 1894, 9 shall be deemed to be a
deposition within the meaning of those sections respec-
tively.
Provided that —
(a) a person shall not be liable to be convicted of the
offence unless the testimony admitted by virtue of this
section and given on behalf of the prosecution is cor-
roborated by some other material evidence in support
thereof implicating the accused ; and
(6) any child whose evidence is received as aforesaid
and who shall wilfully give false evidence shall be liable
to be indicted and tried for such offence, and on convic-
tion thereof may be adjudged such punishment as is pro-
vided for by section 11 of the Summary Jurisdiction Act,
1879, in the case of juvenile offenders. 10
8 See Article 140. 9 See Article 141b.
1057 & 58 Vict. c. 41, s. 15.
Chap. XVI.] THE LAW OF EVIDENCE. 579
Article 123b.
unsworn evidence of a barrister.
A barrister giving evidence in Court, in proceedings
where evidence is usually given by affidavit, as to his action
in his professional capacity in previous proceedings makes
a statement from his seat in Court without an oath having
been administered to him. 11
Article 124.
form of oaths ; by whom they may be administered.
Oaths are binding which are administered in such form
and with such ceremonies as the person sworn declares to
be binding. 12
Any person to whom an oath is administered, who so
desires, may be sworn with uplifted -hand in the form and
manner usual in Scotland. 13
Every person now or hereafter having power by law or
by consent of parties to hear, receive, and examine evi-
11 Hickman v. Berens, [1895], 2 Ch. p. 638, following the previous
unreported ease of Kempshall v. Holland (but see 98 L. T. p. 489,
Leading Article), decided in the Court of Appeal. In the former
case the original proceedings took place before an official referee; in
both the barrister's statement was in substitution for an affidavit.
See Article 111, and Note XLII.
12 1 & 2 Vict. c. 105. For the old law, see Omichund v. Barber,
1745, 1 S. L. C, 7th Ed., 445.
13 51 & 52 Vict. c. 46, s. 5.
580 A DIGEST OF [Pabt III.
dence, is empowered to administer an oath to all such
witnesses as are lawfully called before him. 14
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 371; 1
Wharton on Evidence, sec. 387.
On the swearing of Mohammedans, Brahmins, Chinese, etc. — State
v. Chiagk, 92 Mo. 395; Bow v. People, 160 111. 438; Newman v. New-
man, 7 N. J. Eq. 26 ; Com. v. Jarboe, 89 Ky. 143.
New Jersey.
Form of oath. — Oath substantially in form prescribed. State v.
Dayton, 23 N. J. L. 49.
Jewish oath. — Newman v. Newman, 7 N. J. Eq. 26.
Pennsylvania.
The oath may be administered to a witness by the interpreter.
Com. v. Jongrass, 181 Pa. 172.
Article 125.
how oral evidence may be taken.
Oral evidence may be taken 15 (according to the law re-
lating to civil and criminal- procedure) —
In open court upon a final or preliminary hearing;
Or out of court for future use in court —
(a) upon affidavit,
(&) under a commission, 16
14 14 & 15 Vict. c. 99, s. 16.
1! > 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. </c/fs,
132 Mass. 5; Costello v. Croivell, 133 Mass. 352.
The paper need not have been written by the witness. Com. v.
Ford, 130 Mass. 64; Chapin v. Lapham, 20 Pick. (Mass.) 467; Cof-
fin v. Vincent, 12 Cush. (Mass.) 98: Adac v. Zangs, 41 la. 536;
Billingslea v. Smith, 77 N. Y. 504; Brown v. Galesburg Brick Co.,
132 111. 640; Zina v. Faoer, 51 Pa. St. 387. Compare Moots v. Sfafe,
21 O. St. 653.
A plaintiff had testified that she had earned the money invested in
certain bonds in large part in her business as a milliner and that she
had a high class of customers. She was asked the names of her
634 A DIGEST OF [Part III.
customers, and in answering was allowed to refresh her recollection
by referring to a list of them made by her son upon her dictation.
Held, to be no error. Card v. Foot, 56 Conn. 374.
A witness may refer to memoranda made by himself or others for
the purpose of refreshing his recollection, and it is of no conse-
quence whether the memoranda thus referred to are originals or
copies; they are solely for the use of the witness and are not evi-
dence to go to the jury. Erie Preserving Co. v. Miller, 52 Conn. 446.
The writing must have been made, if by the witness at the time the
transaction was fresh in mind. Russell v. Hudson River R. R. Co.,
17 N. Y. 134.
A motion to strike out the testimony of a witness, because he tes-
tified from a copy of a memorandum, must be made as soon as the
fact is discovered. Pitney v. Glens Falls Ins. Co., 61 Barb. 335, 65
N. Y. 6.
The witness need have no present recollection. Moots v. State,
21 Ohio St. 653.
As to whether the paper read to refresh recollection need to have
been written by the witness, see Moots v. State, 21 Ohio St. 653.
A writing made subsequently to a transaction and when by lapse
of time the facts cannot be considered as fresh in witness' mind
cannot be introduced to refresh his recollection. Jones v. State, 54
Ohio St. 1.
Nor if it", accuracy is justly questioned. Lovell v. Wentworth,
39 Ohio St. 614.
Refreshing memory. — A witness may refresh his recollection from
a memorandum. Dunlap v. Berry, 4 Scam. 327; C. & TV. Coal Co. v.
hiddell, 69 111. 639; C. & A. Ry. Co. v. Adler, 56 111. 344; C. & Y. TV.
Ry. Co. v. McCahill, 56 111. 2S; Seaverns v. Tribby, 48 111. 195;
Elfiton v. Eennicott, 46 111. 187; Bonnett v. Glattfeldt. 120 111. 166;
Flynn v. Gardner, 3 Brad. 253.
The paper need not have been written by the witness. Brown v.
Galesburg Brick Co., 132 111. 648.
A witness may refer to a copy of an account or writing. Bush v.
Stanley, 122 111. 406; Hayden v. Hoxie, 27 111. App. 533; Massey v.
Farmers' Nat. Bank, 113 111. 334, 338; Bonnett v. Glattfeldt, 120 111.
166, 172.
A paper may be shown to a witness on rebuttal to refresh his
memory. Erie P. D. v. Stanley, 22 111. App. 459.
A street car conductor may refresh his recollection bv referring to
Chap. XVI.] THE LAW OF EVIDENCE. 635
a trip sheet. West Chicago St. Ry. Co. v. Kromshinsky, 56 N. E.
1110, affirming 86 111. App. 17.
An invoice or a copy of a writing may be used by the witness to
refresh his recollection. Bredt v. Simpson, Hall, Miller & Co., 95
111. App. 333.
The recollection of a witness may be refreshed by showing him a
published article. Clifford v. Drake, 110 111. 135.
A witness may refresh his recollection by referring to a memo-
randum. Clark v. State, 4 Ind. 156; Johnson v« Culver, 116 Ind. 278;
Prather v. Pritchard, 26 Ind. 65.
Or to his former testimony. Harvey v. State, 40 Ind. 516; Stanley
v. Stanley, 112 Ind. 143; Ehrisman v. Scott, 5 Ind. 596.
Or to shorthand notes. Miller v. Prindle, 142 Ind. 032.
A stenographer may read notes, testified by her to be correct, of
evidence taken before the grand jury. Keith v. State, 157 Ind. 376,
61 N. E. 710.
The error in allowing entries to be read to the jury when witness
has personally testified to having refreshed his memory from them
is harmless. Wilbur v. Schcrer, 13 Ind. App. 428.
As to refreshing the recollection of nonexpert witnesses on the
subject of handwriting, by looking at other specimens, see McDonald
v. McDonald, 142 Ind. 55.
Witness may refresh his memory from memoranda. Johnston v.
Farmers' Fire Ins. Co., 100 Mich. 90; Ford v. Savage, 111 Mich. 144;
Crane Lumber Co. v. Bellows, 110 Mich. 304.
A witness need have no present recollection. Robinson v. Mulder,
81 Mich. 75.
A witness may refresh his recollection by a paper written by hia
agent upon which he has acted as being authentic. Watkins v. Wal-
lace, 19 Mich. 57.
In order to refresh recollection, the attention of the witness may
be called to his evidence at a former trial. Beaubicn v. Cicotte, 12
Mich. 459. Compare Bashford v. People, 24 Mich. 244.
One may refresh his memory from a memorandum made by him-
self. Robinson v. Mulder, SI Mich. 75; Caldwell v. Boicen, 80 Mich.
382.
It is within the discretion of the trial court to allow leading
questions for the purpose of refreshing the recollection of the wit-
ness. Dillon v. Pinch, 110 Mich. 149.
636 A DIGEST OF [Part III.
New Jersey.
Memoranda to refresh memory. — Railroad Co. v. May, 48 N. J. L.
401.
Entries in diary may be used to refresh recollection, but are not
themselves admissible. Lindenthal v. Hatch, 61 N. J. L. 29.
Witness may read from a memorandum which he is using to
refresh his memory. Meyers v. Weger, 62 N. J. L. 432.
A witness may refer to memoranda before taking the stand in
order to refresh his recollection, and need not produce the memo-
randa themselves. Patton v. Freeman, Coxe, 113.
Maryland.
Authorities. — Evans v. Murphy, 87 Md. 498; Spiker v. Nydegger,
30 Md. 315.
What memoranda may be used. — The memoranda need not be
original entries, provided the witness has independent recollection
of the facts. Bulloch v. Hunter, 44 Md. 416.
In testifying as to the price of articles the witness may refer to
authorized price lists. Morris v. Columbian, etc., Co., 76 Md. 354.
When a witness swears that an occurrence was about the same
date as a certain publication, he may use the publication to refresh
his memory as to the date. Bull v. Schuberth, 2 Md. 38.
A book of original entry, not admissible itself because made by
a party to the suit, may be used to refresh recollection. S tailings
v. Got'tschalk, 77 Md. 429.
A notary public may use his record to refresh his memory.
Sasscar v. Bank, 4 Md. 409.
Independent recollection. — A witness may testify from a memo-
randum, even though he has no independent recollection of the facts,
if he knows it was made by him and states the truth. Martin v.
Good, 14 Md. 399 ; Owens v. State, 67 Md. 307 ; Billingslea v. Smith,
77 Md. 504.
A witness may not testify from a memorandum when all his
knowledge on the subject is derived from the memorandum. Lewis
V. Kramer, 3 Md. 205.
An account may be used when the witness has an independent
recollection of the items, though he could not enumerate them with-
out assistance. Bullock v. Hunter, 44 Md. 416.
A witness who is testifying as to genuineness of handwriting
Chap. XVI.] THE LAW OF EVIDENCE. 637
may examine a genuine writing to refresh his recollection. Smith
v. Walton, S Gill, 77.
By whom the memorandum must be made. — The memorandum
need not have been made by the witness, if after seeing it he has an
independent recollection. Billingslea v. Smith, 77 Md. 504.
The memorandum must have been written by the witness himself
at about the time of the transaction set forth in it. Insurance Co.
V. Evans, 15 Md. 54.
One may not use copies of original entries when it does not appear
when or by whom they were made. Ward v. Leitch, 30 Md. 32G.
Time of making memorandum. — The memorandum must have been
made about the time of the transaction and the witness must have
then seen it and recognized it as stating the truth. Green v. Caulk,
16 Md. 556.
Memoranda made long after the event are not admissible for re-
freshing recollection. Swartz v. Chickering, 58 Md. 290.
Pennsylvania.
One may not use notes taken by another person in order to re-
fresh his memory. Withers v. Atkinson, 1 Watts, 236.
A typewritten copy of a memorandum permitted to be used to
refresh memory. Edwards v. Gimbel, 202 Pa. 30.
Character of the writing is immaterial if the witness can testify
from his independent recollection after it is refreshed. Bank of
Dubois v. Bank of Williamsport, 114 Pa. 1.
A witness may testify as to a date after examining a con-
temporaneous memorandum, even though he has no independent
recollection. Dodge v. Bache, 57 Pa. 421; Henry v. Martin, 32
Leg. Int. 100.
Dates, numerous details, known at the time by the witness to be
correct. King v. Faber, 51 Pa. 387.
Other accounts and papers may be used to refresh recollection
as to the items of a voluminous account. Insurance Co. v. Hanlon,
31 Leg. Int. 372.
A book kept by the witness which he knows to be correct may be
used by him in testifying to the number of days on which men were
employed. Heart v. Hnmmel. 3 Pa. 414.
Witness may refresh his memory as to hand writ in? by inspecting
a writing known to be genuine. McNair v. Com., 26 Pa. 388.
638 A DIGEST OF [Part III.
Akticle 137.
eight of adverse party as to writing used to refresh
MEMORY.
Any writing referred to under Article 136 must be pro-
duced and shown to the adverse party if he requires it;
and such party may, if he pleases, cross-examine the wiir
ness thereupon. 41
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 437 et seq.;
8 Encyclopaedia of Pleading and Practice, p. 142; State v. Bacon, 41
Vt. 526, 98 Am. Dec. 616; Com. v. Haley, 13 Allen (Mass.), 587; Com.
v. Burke, 114 Mass. 261; Dugan v. Mahoney, 11 Allen (Mass.), 573;
Chute v. State, 19 Minn. 271; Duncan v. Seeley, 34 Mich. 369; Adoe
v. Zangs, 41 la. 536; Jones v. State, 54 Ohio St. 1. See Peck v. Lake,
3 Lans. 136; People v. McLaughlin, 150 N. Y. 365, 392.
The adverse party has a right to see at once a memorandum used
for the purpose of refreshing recollection. Duncan v. Seeley, 34
Mich. 369; People v. Lyons, 49 Mich. 78; Cortland Mfg. Co. v. Piatt,
83 Mich. 419, 47 N. W. 330.
Maryland.
As to the writing itself as evidence. Owens v. State, 67 Md. 307-
Article 138.
giving, as evidence, document called for and
produced on notice.
When a party calls for a document which he has given
the other party notice to produce, and such document is-
produced to and inspected by, the party calling for its pro-
41 See Cases in R. N. P. 176.
Chap. XVI.] THE LAW OF EVIDENCE. 639
duction, he is bound to give it as evidence if the party
producing it requires him to do so, and if it is or is deemed
to be relevant. 42
AMERICAN NOTE.
General.
Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 563; Mer-
rill v. Merrill, 67 Me. 70; Austin v. Thompson, 45 N. H. 113, 116;
Penobscot Boom Corp. v. Lawson, 16 Me. 224; Blake v. Russ, 33 Me.
360; Ellison v. Cruser, 40 N. J. L. 444; Cushman v. Coleman, 92 Ga.
772; Edison Light Co. v. U. S. Lighting Co., 45 Fed. Rep. 55; Clark
v. Fletcher, 1 Allen (Mass.), 53, 57; Long v. Drew, 114 Mass. 77.
Contra to text. Laufer v. Bridgeport Traction Co., 68 Conn. 485;
Austin v. Thompson, 45 N. H. 113; Smith v. .Rente, 131 N. Y. 169.
The mere production does not make the documents evidence. Mer-
rill v. Merrill, 67 Me. 70.
See Smith v. Rentz, 131 N. Y. 169; Rumsey v. Lowell, Anth. N. P.
26.
Though a document be expressly put in evidence for a particular
purpose, the opposite party may use it for any purpose pertinent to
his case. Kelly v. Dutch Church, 2 Hill, 105; Winants v. Sherman, 3
Hill, 74.
A party having given evidence to the jury is not at liberty to with-
draw it; it becomes the common property of both parties. Decker v.
Bryant, 7 Barb. 182.
The mere marking of a paper does not make it evidence. Casteel v.
Millison, 41 111. App. 61, 65.
New Jersey.
Sustaining text. — Ellison v. Cruser, 40 N. J. L. 444.
This rule does not apply to a second trial of the case unless there
has been a new notice to produce. Ellison v. Cruser, 40 N. J. L.
444.
Alaryland.
Papers produced on notice if inspected by the party calling them
become admissible for both sides. Morrison v. Whiteside, 17 Md.
452.
42 Wharam r. Routledge, 1805, 5 Esp. 235; Calvert v. Flower, 1836 r
7 C. & P. 386.
640 A DIGEST OF [Part III.
Pennsylvania.
This rule applies only to such papers as were actually called for
in the notice. Heaffer v. Life Ins. Co., 101 Pa. 178.
Defendant held to have no right to introduce a paper in evidence
merely because the plaintiff called upon defendant to produce it
and then failed to introduce it. Summers v. M'Kim, 12 S. & It. 405.
Article 139.
using, as evidence, a document production of which
was refused on notice.
When a party refuses to produce a document which he
has had notice to produce, he may not afterwards use the
document as evidence without the consent of the other
party. 43
AMERICAN NOTE.
Authorities. — Bogart v. Brown, 5 Pick. (Mass.) 18; Doon v. Dona-
her, 113 Mass. 151. See also McGuinness v. School District, 39 Minn.
499; Powell v. Pearlstine, 43 S. C. 403; Mather v. Eureka Co., 118
N. Y. 629.
New Jersey.
Authority. — A receipt not produced in accordance with an order
of court cannot afterward be given in evidence. Fleming v. Lawless,
56 N". J. Eq. 138.
Maryland.
A party professing his inability to produce a document cannot at
a subsequent trial of the same cause require a notice to produce
as a condition to the introduction of secondary evidence. Union
Banking Co. v. Gittings, 45 Md. 181.
«Z)oe v. Hodgson, 1840, 12 A. & E. 135; but see remarks in 2 Ph.
Ev. 270.
Chap. XVII.] THE LAW OF EVIDENCE. 641
CHAPTER XVII.
OF DEPOSITIONS.
Article 140.
depositions before magistrates.
A deposition taken under 11 & 12 Vict. c. 42, s. 17, may
be produced and given in evidence at the trial of the person
against whom it was taken,
if it is proved [to the satisfaction of the judge] that the
witness is dead, or so ill as not to be able to travel [although
there may be a prospect of his recovery] ;*
[or, if he is kept out of the way by the person accused] 2
or, [probably if he is too mad to testify,] 3 and
if the deposition purports to be signed by the justice by
or before whom it purports to have been taken ; and
if it is proved by the person who offers it as evidence
that it was taken in the presence of the person accused, and
that he, his counsel, or attorney, had a full opportunity of
cross-examining the witness ;
Unless it is proved that the deposition was not in fact
signed by the justice by whom it purports to be signed
[or, that the statement was not taken upon oath ;
1 R. v. Stephenson, 1862, L. & C. 165.
2/?. v. Scaife, 1851, 17 Q. B. 238.
3 Analogy of R. v. Scaife.
41
642 A DIGEST OF [Part III.
or [perhaps] that it was not read over to or signed by the
witness]. 4
If there is a prospect of the recovery of a witness proved
to be too ill to travel, the judge is not obliged to receive
the deposition, but may postpone the trial. 5
AMERICAN NOTE.
General.
Depositions. — 6 Encyclopaedia of Pleading and Practice, p. 471;
State v. George, 60 Minn. 503 ; State v. Elliott, 90 Mo. 350 ; People
v. Ward, 105 Cal. 652; Brown v. Com., 73 Pa. St. 321; Pittman v.
State, 92 Ga. 480; People v. Dowdigan, 67 Mich. 95; State v. Fitz-
gerald, 63 la. 268; Lucas v. State, 96 Ala. 51; Boon v. Donaher, 113-
Mass. 151; Bogart v. Brown, 5 Pick. (Mass.) 18; Gage v. Campbell,
131 Mass. 566; Kingman v. Tirrell, 11 Allen (Mass.), 97.
Foreign depositions may be translated. Christ man v. Ray, 42 111.
App. 111.
A deposition may be admitted in a subsequent suit. Pratt v.
Eendig, 128 111. 293, 303.
A copy of a lost deposition may be read. Gage v. Eddy, 167 111.
102.
The court should not charge the jury that testimony in open court
is entitled to more credit than evidence by way of depositions. Mill-
ner v. Eglin, 64 Ind. 197; Voss v. Prier, 71 Ind. 128.
As to agreements with reference to the use of depositions in former
trials, see Gemmill v. Brown, 25 Ind. App. 6.
The adverse party may be examined out of court. Sec. 517 ct seq.>
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 <r Exi-
dence" in Chitty's Statutes is 30. The number referred
708 A DIGEST OF
to under that head in the Index to the Revised Statutes is
68. Many of these, however, relate only to the proof of
particular documents, or matters of fact which may
become material under special circumstances.
Of these I have noticed a few, which, for various
reasons, appear important. Such are: 34 & 35 Vict. c.
112, s. 19 (see Article 11); 9 Geo. IV. c. 14, s. 1, amended
by 19 & 20 Vict. c. 97, s. 13 (see Article 17); 9 Geo. IV.
c. 14, s. 3; 3 & 4 Will. IV. c. 42 (see Article 28); 41 &
42 Vict. c. 11 (Article 36); 7 & 8 Geo. IV. c. 28, s. 11,
amended by 6 & 7 William IV. c. Ill; 24 & 25 Vict. c.
96, s. 116; 24 & 25 Vict. c. 99, s. 37; 61 & 62 Vict. c. 36,
s. 1 (6) (see Article 56); 61 & 62 Vict. c. 36, s. 1 (Article
108); 8 & 9 Vict. c. 10, s. 6; 48 & 49 Vict. c. 69, s. 4
(Article 121); 7"& 8 Will. III. c. 3, ss. 2-4; 39 & 40 Geo.
III. c. 93 (Article 122); 11 & 12 Vict. c. 42, s. 17 (Article
140); 30 & 31 Vict. c. 35, s. 6 (Article 141); 53 & 54
Vict. c. 37, s. 6 (Article 141a); 57 & 58 Vict. c. 41, ss. 13,
14 (Article 141b); 57 & 58 Vict. c. 60, s. 691 (Article
142).
Many, again, refer to pleading and practice rather than
evidence, in the sense in which I employ the word. Such
are the Acts which enable evidence to be taken on com-
mission if a witness is abroad, or relate to the administra-
tion of interrogatories.
Those which relate directly to the subject of evidence
as defined in the Introduction, are the eleven following
Acts: —
THE LAW OF EVIDENCE. 709
1.
46 Geo. Ill, c. 37 (1 section; see Article 120). This
Act qualifies the rule that a witness is not bound to answer
questions which criminate himself by declaring that he is
not excused from answering questions which fix him with
a civil liability.
2.
6 & 7 Vict. c. 85. This Act abolishes incompetency
from interest or crime (4 sections; see Article 106).
3.
8 & 9 Vict. c. 113 : "An Act to facilitate the admission
in evidence of certain official and other documents " (8th
August, 1845; 7 sections).
S. 1, after preamble reciting that many documents are,
by various Acts, rendered admissible in proof of certain
particulars if authenticated in a certain way, enacts inter
alia that proof that they were so authenticated shall not be
required if they purport to be so authenticated. (Arti-
cle 79.)
S. 2. Judicial notice to be taken of signatures of certain
judges. (Article 58, latter part of clause 8.)
S. 5. Certain Acts of Parliament, proclamations, &c,
may be proved by copies purporting to be Queen's printers'
copies. (Article 81.)
S. 4. Penalty for forgery, &c. This is omitted as be-
longing to the Criminal Law.
710 A DIGEST OF
4.
14 & 15 Vict. c. 99: " The Evidence Act, 1851 " (7th
August, 1851; 20 sections): —
S. 2 makes parties admissible witnesses, except in cer-
tain cases. (Effect given in Articles 106 & 108.)
S. 3. Persons accused of crime, and their husbands and
wives, not to be competent. Implicitly repealed by the
Criminal Evidence Act, 1898. (Article 108.)
S. 4. The first three sections not to apply to proceed-
ings instituted in consequence of adultery. Repealed by
32 & 33 Vict. c. 68. (Effect of repeal, and of s. 3 of the
last-named Act, given in Article 109.)
S. 5. None of the sections above mentioned to affect
the Wills Act of 1838, 7 Will. IV. & 1 Vict. c. 26.
(Omitted as part of the Laws of Wills.)
S. 6. The Common Law Courts authorised to grant
inspection of documents. (Omitted as part of the Law of
Civil Procedure.)
S. 7. Mode of proving proclamations, treaties, &c.
(Article 84.)
S. 8. Proof of qualification of apothecaries. (Omitted
from the text as part of the law relating to medical
men.)
Ss. 9, 10, 11. Documents admissible either in England
or in Ireland, or in the colonies, without proof of seal, &c,
admissible in all. (Article 80.)
S. 13. Proof of previous convictions. (Omitted from
the text as belonging to Criminal Procedure.)
THE LAW OF EVIDENCE. 711
S. 14. Certain documents provable by examined copies
or copies purporting to be duly certified. (Article 79,
last paragraph.)
S. 15. Certifying false documents a misdemeanour.
(Omitted as belonging to Criminal Law.)
S. 16. Who may administer oaths. (Article 124.)
S. 17. Penalties for forging certain documents.
(Omitted as belonging to the Criminal Law.)
S. 18. Act not to extend to Scotland. (Omitted.)
S. 19. Meaning of the word " Colony." (Article 80,
note 1.)
5.
28 & 29 Vict. c. 18 : " The Criminal Procedure Act, 2
1865 " (9th May, 1865, 10 sections). This Act re-enacts
ss. 22-27 of the Common Law Procedure Act. 1S54,
which are now repealed by the Statute Law Revision
Act, 1892.
S. 1. Sects. 3-8 to apply to all courts and causes, crim-
inal as well as civil.
S. 2. Summing up of evidence in criminal cases.
(Omitted as being procedure.)
S. 3. How far a party may discredit his own witnesses.
(Articles 131, 133, and see Note XLVII.)
S. 4. Proof of contradictory statements by a witness
under cross-examination. (Article 131.)
S. 5. Cross-examination as to previous statements in
writing. (Article 132.)
2 This is the title given to the Act by the Short Titles Act, 1896 ;
it seems to be based exclusively on sect. 2 of the Act.
712 A DIGEST OF
S. 6. Proof of previous conviction of a witness may be
given. (Article 130 (1).)
S. 7. Attesting witnesses need not be called unlesa
writing requires attestation by law. (Article 69.)
S. 8. Comparison of disputed handwriting. (Articles
49 and 52.)
6.
31 & 32 Vict. c. 37 (25th June, 1868, 6 sections) :—
S. 1. Short title. " The Documentary Evidence Act,"
1868.
S. 2. Certain documents may be proved in particular
ways. (Article 83, and for schedule referred to, see note
to the article.)
S. 3. The Act to be in force in the colonies. (Arti-
cled.)
S. 4. Punishment of forgery. (Omitted as forming
part of the Criminal Law.)
S. 5. Interpretation clauses embodied (where neces-
sary) in Article 83.
S. 6. Act to be cumulative in Common Law. (Implied
in Article 73.)
7.
32 & 33 Vict. c. 68 (9th August, 1869, 6 sections) : —
S. 1. Repeals part of 14 & 15 Vict. c. 99, s. 4, and part
of 16 & 17 Vict. c. 83, s. 2. (The effect of this repeal is.
given in Article 109; and see Note XLI.)
S. 2. Parties competent in actions for breach of prom-
ise of marriage, but must be corroborated (See Articles
106 and 121.)
THE LAW OF EVIDENCE. 713
S. 3. Husbands and wives competent in proceedings in
consequence of adultery, but not to be compelled to answer
certain questions. (Article 109.)
S. 4. Atheists rendered competent witnesses. (Re-
pealed by Oaths Act, 1888.)
S. 5. Short title: "The Evidence further Amendment
Act, 1869."
S. 6. Act does not extend to Scotland.
8.
48 & 49 Vict. c. 69 : " The Criminal Law Amendment
Act, 1885 " (20 sections).
S. 4. Unsworn evidence of a child admitted in cases
of defilement of a girl under thirteen; but corrobation
needed. (Article 123a.)
9.
51 & 52 Vict. c. 46: "The Oaths Act, 1888" (24th
Dec, 1888; 7 sections).
S. 1. A person objecting to be sworn may make an
affirmation. (Article 123.)
S. 2. Form of affirmation.
S. 3. Oath valid, though no religious belief. (Arti-
cle 123.)
S. 4. Form of written affirmation.
S. 5. Swearing as in Scotland. (Article 124.)
S. 6. Repeals.
S. 7. Short title.
10.
57 & 58 Vict. c. 41 : " The Prevention of Cruelty to
Children Act," 1894 (28 sections).
714 A DIGEST OF THE LAW OF EVIDENCE.
S. 15. Unsworn evidence of a child admitted in casea
of cruelty to children, etc.; but corroboration needed.
(Article 123a.)
11.
61 & 62 Vict. c. 36: "The Criminal Evidence Act,
1898 " (7 sections).
S. 1. Person charged with offence, and their wife or
husband competent witness. (Article 108.)
S. 2. When such person is called. (Omitted as pro-
cedure.)
S. 3. Right of reply. (Omitted as procedure.)
S. 4. When husband or wife a compellable witness.
(Article 108.)
SS. 5, 6, 7. Application of the Article to Scotland,
Ireland. Courts-martial, etc.
These are the only Acts which deal with the Law of
Evidence as I have defined it. It will be observed that
they relate to three subjects only — the competency of
witnesses, the proof of certain classes of documents, and
certain details in the practice of examining witnesses.
Thus, when the Statute Law upon the subject of Evidence
is sifted and put in its proper place as part of the general
system, it appears to occupy a very subordinate position in
it. The eleven statutes above mentioned are the only ones
which really form part of the Law of Evidence, and their
effect is fully given in twenty-two 3 articles of the Digest,
some of which contain other matter besides.
3 49, 52, 58, 69, 79, 80, 81, 83, 84, 106, 108, 109, 120, 121, 123,
123a, 124, 125, 130, 131, 132, 133.
INDEX
[The numbers refer to pages.]
Abbreviations, oral evidence to interpret, 444, 451, 455
Ability to do an act, 48
Abortion, dying declarations, 156, 159, 160
Absence for seven years, presumption of death, 497
Absent witness, evidence in former proceedings, 191-198
Abstract of title, 213, 373
Acceptor of bill of exchange, estoppel, 516
Accessory, competency of, 539
Accidents, res gestae, 28
similar, 65-76
opinions as to dangerous character of a place, 205
Accomplices, corroboration required, 568-571
Account, books of, 161-170
Accuracy, questions to test, 604-609
Accused as witness, 538, 539
Acquittal of one joint defendant to render him competent, 538
Acts showing intention, good faith, etc., 76-86
of Parliament, judicial notice, 314
of conspirators, (J57
statements accompanying, 20-29
Additional terms of a contract, oral evidence to prove, 437
Adjutant-general's records, 204
Administrators, admissions by, 123, 125, 128
Admiralty, conclusiveness of judgments. 234-238
Admission of evidence by agreement, 593
conditionally, 588
Admissions, 101-137
defined, 101, 668
as estoppels, 333
by agents and persons jointly interested, 113-131, 670
by a party to the suit, 106
by attorneys, barristers, etc.. 119, 123, 127, 128. 130
715
716 INDEX.
[The numbers refer to pages.]
Admissions — Continued
by bankrupts, 132
by corporation officers, 124, 126, 130
by executors and administrators, 123, 125, 128
by former agents, 129
by guardian, 126
by husband and wife, 115, 124, 127, 131
by infants, 106
by insured as against beneficiaries, 133
by intestate, 115
by joint contractors, 118, 122, 127, 128
by joint debtors, 131
by joint maker of a note, 126
by joint owners, 130
by nominal parties, 110, 111, 116
by parties suing in representative capacity, 110, 114, 116
by partners, 118, 122, 126, 128, 130
by person referred to by a party, 134, 135, 671
by persons having a substantial interest, 110, 111, 114, 117
by principal and surety, 119, 123, 125, 131, 133
by privies in law, blood, or estate, 110-118
by public agents, 124
by relatives, 125
by strangers, 131-133, 670
by trustees, 125
by whom made, 669
dispensing with other proof, 331-334
implied from conduct, 104, 106
implied from silence, 105, 106, 108, 109
in criminal cases, 103
in pleadings, 106, 332, 333
instances of, 102
in Avriting, 109
made without prejudice, 135-137, 671
not conclusive, 104
of deceased person, 105, 107
of the contents of a document, 345-347
self-serving, 106. 108, 109
to prove marriage, 296, 297
INDEX. 717
[The numbers refer to page9.]
Admissions — Continued
to show agency, 124, 126, 130
under duress, 135-137
weight as evidence, 100
who may make on behalf of others, 110-118, 609
Admitted facts, 331-334
Adultery, admissions of paramour, 132
ante-nuptial incontinence, 72
character for chastity, 30S
circumstantial evidence, 339
competency in proceedings relating to, 540, 541
competency of husband and wife, 538, 540, 541
degree of proof, 470, 476
marriage not provable by cohabitation and repute, 296, 297
other acts of, 67
other acts to show mutual disposition, 83
particeps criminis, 140, 541
Adverse party, leading questions on direct examination of, 603
Affairs of State, communications privileged, 546
Affidavits as evidence, 580
Affirmation or oath, 575
Affirmative, burden on one supporting, 460-467
Age, declarations as to, 184, 187
Agency, admissions to prove, 124, 126, 130
parol evidence of, 434, 438, 456
Agents, admissions by, 118-131
burden of proof on, 490, 491
estoppel of, 517
shown to be such by other acts, 85, 89-93
statements as part of the res gestce, 55
Agent's report to principal not an admission in favor of third per-
sons, 118, 124
Agreements in writing, parol evidence to vary, 425-459
parol proof of agreements collateral to, 426. 432. 437
partly written and partly oral. 454, 456
Alibi, burden of proving, 471
Alienation of wife's affections, competency of husband and wife. 543
Almanac, 215
judicial notice, 318, 326, 329
718 INDEX.
[The numbers refer to pages.]
Alteration of writings by oral evidence, 425-459
degree of proof, 480
expert testimony, 291
Alterations, presumption as to, 419-424
Ambiguities, 444-456
Ancient documents, 415-419
facts, hearsay admitted, 100
maps, 417, 418
Annuity tables, 213
Answers, unresponsive, 589, 590, 593, 595
Anticipating defense, 589
Arbitrators, privilege of, 545
Architect's schedule of charges, 213
Arrest, evasion of, 44
Assault and battery, character for chastity, 303
Assayers as experts, 269
Assessment lists, 203, 386
Assurance of counsel that evidence is relevant, 9, 593
Atheists, incompetency of, 522, 527, 529, 531
dying declarations of, 159
Attendance of witnesses, xxiv, 589
Attested documents, 351-361
when attesting witness need not be called, 356-358
when attesting witness forgets or denies, 359, 360
attestation not required by law, 360, 361
burnt or canceled, 351
proof of, by admissions, 352-354, 356
lost, 353, 356, 359
proof of signature of maker, 354, 356
handwriting of witness, 351, 355, 356
collateral to the suit in question, 357, 358
Attesting witnesses, 351-361, 682
handwriting, 351, 355, 356
blind, 351
dead, 352, 354, 356
beyond reach of process, 352, 353, 354, 355
not found, 353, 355, 356
one witness enough, 353, 356
insane, 354, 356
INDEX. 7 Id
[The numbers refer to pages.]
Attesting — Continued
to wills, 355, 358
need not be called when instrument is collateral to the suit,
357, 358
opinion as to sanity, 262, 263, 266
Attorney and client, burden of proof, 479, 489, 490
privileged communications, 550-558
privilege of client, 557, 558
when relation exists, 554, 558
Attorneys, admissions by, 119, 123, 127, 128, 130
competent witnesses, 532
privileged, 544-546
Attorney's fees, customary charges, 70
Authentication of records, 205
Authority of agent to make admissions, 129
Bad faith, acts showing, 76-86
Bailee, estoppel of, 517
Bank-books, 170, 387
compelling production of, 560
Bankers' books, 217-219
Bankrupts, admissions by, 132
Barrister, unsworn evidence of, 579
see Attorneys
Bastardy, burden of proof, 467
character of accused, 309
corroboration required, 567-571
resemblances of child to father, 338, 340
Belief on oath, witness unworthy of. 622-629
Benefits and damages, opinion as to, 258, 260
Best evidence, 8, 11, 364
Bias as affecting competency, 520, 522
questions to show, 604-607
contradicting answers of witness, 609-612
Bible, family record, 206
to prove pedigree, 188, 189, 191
Bigamy, competency of husband or wife, 538
marriage not to be proved by mere cohabitation and repute,
296-298
720 INDEX.
[The numbers refer to pages.]
Bill of exceptions, 589
Bill of exchange, estoppel of acceptor, 51G
Bill of lading, estoppel, 518
parol evidence to alter, 434, 443
Bills and notes, oral evidence to alter terms of, 435, 442
presumptions and burden of proof, 476
Birth, declarations as to, 184-191
register of, 202, 205
Blood relations, declarations as to pedigree, 185
Boards of health, records of, 205, 208
Bodily feeling, acts showing, 76-86
Bonds thirty years old, 416, 418
Books of account, 161-170
time of entry, 163, 164, 169
of original entry, 164, 166, 169
authentication of entries, 164, 165, 170
partnership books, 165
weather records, 166
• church records, 166
physician's record, 166
of a corporation, 166
cash items, 167
entries by interested party, 168
in lead pencil, 169
of banks, 170, 217-219, 387
in suits between third parties, 170
in corroboration, 168
reputation for inaccuracy and fraud, 302
Books, reading from, 214
of law, 212, 214-216
medical, 211, 214, 215
scientific, 211, 214
Boundaries, declarations as to, 182-184
in deeds, oral evidence to alter, 440
in dispute, 36
Breach of promise, character for chastity, 313
corroboration required, 567-571
Bribing witnesses, 42, 44
INDEX. 721
[The numbers refer to pages.]
Burden of proof, 460-492
one affirming must prove, 460-467
presumption of innocence, 468-472
on whom general burden lies, 472-480
as to particular facts, 481-486
facts to be proved to make evidence admissible, 487, 488
when parties stand in a fiduciary relation, 488-492
in criminal cases, 468-472
voluntary confessions, 144, 148, 149
as to negligence, 462, 476, 485, 486
as to contributory negligence, 483, 485, 486
as to preliminary facts, 487, 488
shifting of, 472-481
Burden of proving time of death, 497
Burials, register of, 202, 205, 208
Business, declarations in course of, 161-170, 673
By-laws, certified copies, 401
Bystanders, acts and words of as res geatce, 28
Capacity to contract, oral evidence as to laok of, 425
to make a will, declarations of testator, 178, 179
Census to show population, 200
Certified copies, 394-403
no better evidence than the originals, 387
mode of authentication, 397, 401, 402
authority of officer, 399, 401
secondary evidence, 361
Changing rules of evidence, power of Legislature, 7
Character, 301-313, 679
generally irrelevant, 301-305
in criminal cases, 305-310, 629-631
as affecting damages, 310-313
as to chastity, 302-305, 308-310, 313, 629-631
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 suits, 304
46
722 INDEX.
[The numbers refer to pages.]
Character — Continued
of witnesses, 304, 604-G09
proof of specific acts, 303-305, 308-312
of accused for truthfulness, 309
in libel and slander, 311-313
of an act, other acts to prove, 85
see Reputation
Charge of the court to disregard evidence, 649-652
Chastity, character of prosecutrix in rape cases, 629-631
Charging jury as to admissions, 104
Charts and plans, 209-217
Chemical experiments, 338
Child, unsworn evidence receivable in certain cases, 576-578
Church records, 166
Circumstances surrounding testator, 62
surrounding the execution of a document, '444, 450, 453, 455
Circumstantial evidence, 7, 11
City council, record of, 205
Civil cases, burden of proving crime in, 468-472
Claim on estate of deceased person, corroboration, 571
Classification of law, xix
Clergymen, privileged communications, 559, 698
Co-conspirator as witness, 538
Codification of the law of evidence, xxvi
Cohabitation evidence of marriage, 295
Collateral agreements, oral proof of to add to a writing, 426, 432, 437
Collateral attack on a judgment, 249
Collateral matters, contradicting answers of witness as to, 611, 612
judgment not conclusive, 231
Collateral proceeding, proof of the terms of a document in, 457-459
Collusion in procuring a judgment, 246-251
Colonial acts of State, 407
laws, 408
Combinations to defraud, 34
Comity of States, conclusiveness of judgments. 254
Commission, evidence taken under, xxiv, 580-585
to perpetuate boundaries, 584
Common calamity, death in, 497-500
INDEX. 723
[The numbers refer to pages.]
Common law, judicial notice of, 319
oral evidence of, 349
Communications between attorney and client, 550-556
during marriage, 541-544
of husband and wife in presence of a third person, 543
on affairs of State, 54G
of testator to his attorney, 554
Comparison of handwriting, 289-295
letter- press copies, 291
photographic copies, 291, 294
writings in evidence for comparison merely, 290-293
standard of comparison, 292-295
on question of forgery, 294
Competency of witnesses, 520, 695
of atheists, 522, 527, 529, 531
of convicts, 522, 527, 529, 531
of accomplices, 522
of husband and wife, 524, 533
of adverse party, 526
of party to a transaction with one deceased, 528-532
of drunken persons, 532
of attorneys, 532
of perjurers, 531
in adultery proceedings, 540, 541
in criminal cases, 533-540, 696
of persons jointly indicted, 533
of jurors, 548-550
Complaints as evidence, 49-58, 658
terms of, irrelevant, 52
Compromise, offers of, 135-137
Conclusions of witness not admissible, 262, 264
Conclusive judgments, 220-234
Conclusive proof denned, 4
Conclusiveness of admissions, 104
Condemnation proceedings, opinion evidence, 260
Condition precedent to a writing's taking effect, oral proof of, 426,
429, 433, 438, 443
Conditional delivery, oral evidence to prove, 430
724 INDEX.
[The numbers refer to pages.]
Conduct, admissions by, 106
estoppel by, xxv, 510-514, 693
subsequent to an act, 41-48
while making declaration, 56
Confessions, 138-154
defined, 138-141
admissibility a question for the judge, 146, 148-150
after influence of inducement is removed, 147-149
burden of proving voluntary, 144, 148, 149, 488
by conduct, 140
by infants, 148
by mere advice, 146
by silence, 139-141
caused by inducement, threat, or promise, 141-150
credibility for the jury, 148
distinguished from admissions, 139
induced by hope, 148
in letter, 140
involuntary, 141-150
obtained by religious exhortation, 146
obtained by detectives, 154
on improper compulsion, 150-152
on oath, 150-152, 672
to officers, 149
under promise of secrecy, 152-154
under threats, 671
voluntary, 138
when drunk, 152-154
while in custody, 147
Confidential communications, privilege of client, 557, 558
Consciousness of impending death, 157, 158, 160
Consideration, oral evidence as to want of, 426, 434, 438, 440
Conspiracy defined, 32
to counterfeit, 32
to commit fraud, 33, 34
preliminary proof of, 32, 33
civil and criminal cases, 31, 34
proof of other acts to show purpose, 82
Conspirators, acts of, 29-34, 657
civil and criminal cases, 31, 34
INDEX. 725
[The numbers refer to pages.]
Construction of documents, see Interpretation
Contested elections, privilege as to criminating questions, 566
Contracts, evidence as to terms of, 425-459, 685
Contradicting answers to questions testing veracity, 609-612
one's own pleadings, 10
one's own witness by proof of inconsistent statements, 615-619
prosecutrix in rape cases as to chastity, 629-631
Contradictory statements of witness in writing, 620, 621
Contributory negligence, 483, 485, 486
Conversations, admissions in, 105
by telephone in evidence, 337
of husband and wife, 542
Conveyances, oral testimony to alter terms of, 425-459
Conviction of crime to shake credit of a witness, 604, 606, 607
contradicting answers of witness, 609-612
Copies as secondary evidence, 361-364
correctness of, 362
equivalent to exemplifications, 394
Corporation, books of, 166, 202, 205, 206, 208
burden of proof on director of, 489
Corporation officers, admissions by, 124, 126, 130
Corporation records, 386
certified copies, 397
Corpus delicti, proof of, 139, 140, 141
Corroboration, when required, 567-571
of young child required to convict, 577
Corroborative evidence, 11
Counterfeiters, in conspiracy, 32
Counterfeiting, expert evidence, 281
Counterfeit money, other utterances of, 77-86
Counterparts, 344, 346, 347
when secondary evidence, 361
Course of business, 89-93, 665
declarations made in, 161-170
time when made, 163, 164, 169
Court of general jurisdiction, what is, 247
Court records, exemplifications, 393
certified copies, 397, 401
Credible witness, 9
726 INDEX.
[The numbers refer to pages.]
Credibility on oath, 62G-628
Credibility, questions to test, 604-009
Cries of mob as explanatory, 59
Crime, disqualification of witness for, 522, 527, 529, 531
proving commission of, 468-472
Crime and fraud, communications not privileged, 551-556
Crimes, similar, 65-76
Criminal cases, admissions in, 103
burden of proof, 468-472
competency of witnesses, 533-540, 696
new trial, 649-652
Criminal conversation, competency of husband and wife, 543
intercourse prior to marriage, 72
marriage not provable by cohabitation and repute, 296-298
Criminal proceedings, evidence of character, 305-310
Criminating documents, compelling production of, 559-561
Criminating questions, 562-567
Cross-examination, 5S5-609
as to character, 303, 304
as to previous statements in writing, 620, 621
case not to be substantively established on, 599
discretion of judge, 609
former inconsistent statements, 612-619
irrelevant questions permitted, 20
leading questions, 600-603
limits of, 703
must be germane, 597, 598
of impeaching witnesses, 622-629
of prosecutrix in rape cases, 629-631
questions lawful on, 604-609
Teasons for not believing a witness on oath, 622-629
to show bias, accuracy, etc., 599
to what matters it must be directed, 596-600
Cumulative evidence. 7, 12
Curing error, 649-652
Custom of doing things as evidence of a special act, 74
oral proof of, to add to or alter a writing, 426, 430, 434, 439
Customs, 38-40
judicial notice, 315, 320. 328. 329
public and general, 180-184
INDEX. 727
[The numbers refer to pages.]
Damages, character as affecting, 310-313
opinion as to amount, 258, 200, 203, 266
Date of document, oral evidence to alter, 426, 430, 443
presumption as to, 410-412
Dates, refreshing memory, 637
Deaf and dumb witness may be competent, 521, 522
Death, declarations as to, 184-191
impending, consciousness of, 157, 158, 160
in common disaster, 497-500
presumed after seven years, 497
registers of, 202, 205, 206
Deceased persons, declarations by, 154-198
claims against, 571
Deceased witness, evidence in former proceedings, 191-198
Deception, confessions obtained by, 152-154
Declarant defined, 154
Declaration defined, 154
Declarations accompanying acts, as res gestce, 20-29
affecting title, 36
against interest, 170-176, 673
as to boundaries, 182-184
as to cause of death, 155-161
as to pedigree, 184-191, 676
as to public and general rights, 180-184, 674
by deceased persons, 154-198
impeaching credit of declarant, 631, 632
by insane persons, 154, 155
by persons absent, 155
by testators as to contents of will, 177-179
dying, 155-161
in course of business or professional duty, 161-170, 673
in former proceedings, 191-198
in one's own favor, 106, 108, 109
of intention accompanying an act, 51, 54, 56, 57
showing malice, 43, 46
see also Statements
Decoy letters, 14
Deeds, alterations in, 419-423
certified copies, 398-403
728 INDEX.
[The numbers refer to pages.]
Deeds — Continued
exemplified copies, 393
existence presumed, 504
oral testimony to vary terms of, 425-459
originals as evidence, 387
presumption as to date of, 412
as to order of execution, 411
as to sealing and delivery, 413-415
proof of, 348
recitals in, to prove pedigree, 191
thirty years old, 416
to show public and general rights, 180-184
Defamation, evidence of reputation, 311-313
Default, judgment by, 230, 232
Defendant in criminal case as witness, 538, 539
when burden of proof is on, 462, 465, 467, 484, 486
Definition of terms, 3-12, 653
Degree of proof necessary, 463-465, 475-477, 480
Degrees of secondary evidence, 364, 373, 378
Delivery of deeds, presumption as to, 413-415
Demonstrative evidence, 336-342
Demurrer, judgment on, 232
to evidence, 588
Depositions, xxiv, 580-585, 641-648
under Merchant Shipping Act, 647
of children, 645
under Foreign Jurisdiction Act, 644
under 30 & 31 Vict., chap. 35, §§6, 643
before magistrates, 641
dying declarations in form of, 155
impeaching credit of deponent, 631, 632
Desertion, competency of husband or wife, 539
Detectives competent, 522
confessions obtained by, 154
not accomplices, 569
Diplomatic correspondence, recitals in, 199
Discretion of court as to cross-examination, 609
Disgracing questions, 604. 605, 607
Disqualification of surviving party removed, 533
INDEX. 729
[The numbers refer to pages.]
Divorce, antenuptial incontinence, 72
burden of proving adultery, 470, 476
corroboration necessary, 569-571
evidence of character, 304
judgment conclusive proof, 221-223
Doctor's fees, customary charges, 70
Doctors, privileged communications, 559
Document defined, 3
Documentary evidence, 343-383
primary evidence, 343-351
counterparts, 344, 346, 347
inspection of, 339, 341
Documents, bankers' books, 366
burnt or canceled, 351, 372
collaterally in issue, oral proof, 374, 375, 457-459
contents proved by admissions, 345, 347, 352-354, 356
destroyed, 365, 368, 372, 376, 377
diligent search for, 368, 371, 375-377
exclusive evidence, 685
illegible, 376
in hands of adverse party, 365, 367, 372, 374, 376, 378, 381
in hands of a stranger, 365, 369, 378, 379, 381, 382
in several parts, 344, 346
intentionally destroyed, 368, 374
interpretation of, 444-456
lost, 353, 365, 368, 374-377
notice to produce, 369
not movable, 366, 369, 378
out of the jurisdiction, 369, 378
presumptions as to, 410-424
proof of contents of, 425-459
public, 366, 373, 384-409
required to be attested, 351-361
secondary evidence of contents, 361-383
thirty years old, 415—419
too numerous to produce. 366, 369. 373. 378
see Secondary Evidence; Presumptions
Domicile, statements of intention, 51, 54, 57
Drunk, confessions when, 152-154
730 INDEX.
[The numbers refer to pages.]
Drunken persons, competency, 532
Duplicates, primary evidence, 344, 346, 347
Duress, admissions under, 135-137
Dying declarations, 155-161, 672
in civil cases, 158, 159
by atheists, 159
to prove abortion, 156, 159
province of court and jury, 160
constitutionality of rule, 158, 161
written and oral, 158, 160
burden of proof, 487
impeaching credit of declarant, 632
Eavesdroppers overhearing conversations between attorney and
client, 554, 558
Ejectment, conclusiveness of judgment, 233
Election contests, how evidence is taken, 594
privilege as to criminating questions, 566
Embezzlement, extravagance relevant to prove, 60
Engineers, expert evidence, 273, 276
Entries made in public records in performance of duty, 200-208
Equally divided court, 8
Equity, parol evidence rule in, 435
Error in admitting or rejecting evidence, 649-652
Estoppel by conduct, xxv, 510-514, 693
of one who carelessly draws a check, 512
of tenant and licensee, 514
of acceptor of bill of exchange, 516
of bailee and agent, 517
of the signer of a bill of lading, 518
judgment as an, 238-240
Evading arrest, 44
Evasive testimony, 45
Evidence, defined, 4, 5
relevant, 5-20
moral, 7
cumulative, 7, 12
circumstantial, 7, 11
changing rules of, 7
1X1JEX. 731
[The numbers refer to pages.]
Evidence — Continued
material, 7
irrelevant, 8, Id, 17
best, 8, 11
rebutting, 8, 11
affirmative and negative, 8, 11
corroborative, 11
real, 12
remote, 14, 10, 17
explanatory, 15
negative, 8, 11
to be on oath, 575
improperly obtained, 338
in former proceedings, 191-198, 67G
opportunity to cross-examine, 192, 194, 197
identity of issues, 192, 194, 196, 197
identity of parties, 192, 194, 196, 197
in criminal cases, 192
by whom proved, 194-198
judge's notes, 195, 198
stenographer's notes, 195
preliminary hearings, 193, 198
how proved, 195-198
before arbitrators, 196
attorney's notes, 194, 196
Examination of witnesses, 703
by the court, 589
Examination in chief, 585-595
discretion as to leading questions, 601-003
hostile witness, 613. 619
Examined copies. 3SS-390, 684
method of comparison. 389
secondary evidence, 361
Exclamations of pain, 53, 55, 56
Excluding witnesses from the courtroom, 592
Exclusion of oral by documentary evidence. 425-459
Executors and administrators, admissions by, 123, 125, 128
Exemplifications, 391-393, 684
copies equivalent to, 394
letters of administration, 392
732 INDEX.
[The numbers refer to pages.]
Exemplifications — Continued
foreign statutes, 392
colonial deeds, 392
deeds, 393
court records, 393
secondary evidence, 361
Exhibiting objects to jury, 336-340, 342
Experiments, 9, 12, 338
as grounds of an opinion, 299
Expert opinion, 267-289
on points of science or art, 267-284
as to handwriting, 267, 268, 270, 277, 281
as to foreign law, 267, 269, 277, 279
as to symptoms of poisoning, 268
as to mental unsoundness, 268
subjects of, 269, 276, 278, 280
form of questions, 271, 273, 278, 279, 282
as to value of property and services, 275
works of science, 276
technical terms, 280
insurance risk, 280
forgery and counterfeiting, 281, 287
based on testimony of others, 282
Experts, defined, 267
qualification of, 267, 270, 271, 272, 277, 282
assayers, 269
photographers, 269
surveyors, 269, 276
may define terms of art, 272
lawyers, 272, 279, 280
physicians, 272, 277, 279, 281
engineers, 273, 276
railway, 273
mechanical, 274
may refresh memory, 632
Explanatory evidence, 15
facts, 58-64
maps, 62
statements, 41—48
Exposure to penalty, compelling production of documents, 559-561
INDEX. 733
[The numbers refer to pages.]
Fabrication of evidence, 44, 48
Fact denned, 3
Facts in issue, xx, 4, 13, 229, 231, 233
relevant to the issue, xx, 13
necessary to explain or introduce relevant facts, 58-64
showing system, 86-89
to be proved to make evidence admissible, 487, 488
which might have been litigated, judgments conclusive, 226, 227,
231, 232
discovered through confessions improperly obtained, 143, 147, 150
Failure to call witnesses, 45, 48
to testify, 45, 46, 48
False pretenses, other offenses relevant, 76-"66
False testimony, 45, 48
Family Bible to prove pedigree, 188, 189, 191
Family record, 206
Federal courts, competency of husband or wife, 538
Federal statutes, certified copies, 396
Fees of witnesses, 589
Fiduciary relation, burden of proof, 479, 488^192
Field notes, 213
Fixing time or place of an occurrence, 58-64
Flight as evidence, 44, 48
Foreign acts of State, 407
Foreign attachment, judgments not conclusive, 238
Foreign expressions, oral evidence to interpret, 444
Foreign law, opinion of experts, 267, 269, 277, 279
Foreign records, 206, 385
exemplifications, 391
Forfeiture, privilege of witness, 562-567
Forged instruments, other utterances to prove intent, 82, 83
Forgery, confession of forger, 141
expert evidence, 281, 287
comparison of handwriting, 294
Forgetful witness, 194
Form of oaths, 579
of questions to a witness, 587
Former proceedings, evidence given in, 191-198
see Evidence
734 INDEX.
|_The numbers refer to pages.]
Foundation for proof of previous inconsistent statements, 614-619
Fraud and crime, communications not privileged, 551-556
Fraud, burden of proof, 462, 483
collusion, etc., in procuring a judgment, 246-251
estoppel, 511
latitude in admitting evidence of, 11, 81
oral evidence of, 425, 429, 435, 438, 441
Fraudulent intent, other acts to prove, 76-86
Gambling cases, privilege as to criminating questions, 565
General burden of proof, 472-480
public history, 209-217
records of the realm, 390
reputation, 303-305, 308-312
rights, declarations as to, 180-184
Genuineness of documents, 58
Geographical facts, judicial notice, 316, 317, 320, 323
Good faith, acts showing, 76-86
burden of proving, 488-492
Governor's proclamation, 203
Grand jurors, competency of, 548-550
Great seal, judicial notice, 316, 318
Guardian, admissions by, 126
Guardian and ward, burden of proof, 490, 491
Guess of witness not admissible, 262
Guilty knowledge, other offenses to prove, 76-86
Habits, as affecting probable future earnings, 25
Handwriting, opinion of experts, 267, 268, 270, 277, 281
when opinions are deemed relevant, 285-289
comparison of, 289-295
when witness is competent, 285-289
form of questions, 287
preliminary proof of competency of witness, 289
photographic copies, 291, 294, 295
letter press copies, 291, 295
refreshing memory, 635, 636
Harmless error. 649-652
Health, presumption of, 483
INDEX. 735
[.The numbers refer to pages.]
Health officer's records, 205, 208
Hearsay irrelevant, 94-100, 665
when relevant, 101
instances, 95-100
not evidence, xvii
Highway injuries, condition elsewhere, 70, 71
Highways, indictments for nonrepair of, 536
History, works of, 209-217
Holding office, acts as officer, 89-93
proved by action of officer, 427, 435
Homicide, dying declarations, 155-161
Hope of recovery, dying declarations. 155-161
Hope or fear, confessions induced by, 141-150
Hostile witness, leading questions, 601, 603
previous inconsistent statements, 613, 619. 628
Husband and wife, admissions by, 115, 124, 127, 131
as witnesses on question of legitimacy, 493
burden of proof, 490, 492
competency in adultery proceedings, 540, 541
competency in criminal cases, 533-540
criminating questions, 564-566
privileged communications, 541-544
Hypothetical questions, 273, 278, 279, 282
Identity of person or thing, 58-64
of persons and things mentioned in a document, 444, 449, 452,
453, 455
opinion as to, 261
Illegible documents, oral evidence to interpret, 444
Illness of witness, evidence in former proceedings, 191-198
Immaterial alterations, 420, 421, 424
Impeaching credit of witness, 622-629
one's own witness on cross-examination. 614-619
by showing witness to be unworthy of belief on oath, 622-629
Implied admissions. 104-109
Impotency, competency of wife. 542
to rebut presumption of legitimacy, 493-497
Impression of witness, 336. 337, 340. 341
Improper admission and rejection of evidence, 649-652
736 INDEX.
[The numbers refer to pages.]
Incest, character for chastity, 304
competency of husband or wife, 538
Incompetency of witness, 520
of workmen, 73
Incomplete writings, oral testimony to add to, 429, 433, 443
Inconsistent statements, 612-619, 705
Indecency of evidence, 656
Independent recollection of witness, refreshing memory, 632-837
Indorsements of payment on notes as declarations against interest,
171, 175, 176
Inducements, confessions obtained by, 141-150
Infancy, burden of proving, 466
Infants, admissions by, 106
Information as to commission of offenses, 547
Injuries, declarations as res gestce, 23-29
exhibition to jury, 338, 339, 342
Innocence, presumption of, 468-472, 693
Insane persons, declarations by, 154
Insane witness, evidence in former proceedings, 191-198
Insanity, burden of proof, 462, 470, 471, 477, 482, 483, 486
in the family, 74
Insured buildings, other fires, 72
Inspection of documents, 339, 341
Instruments collaterally in issue, oral proof, 457^459
see Documents
Insurance policy, oral testimony to alter, 427, 436
proof of, 348
premiums in case of absence unheard from, 500
Intention, acts showing, 76-86
evidence of, 10
in executing a document, parol evidence of, 449, 454
of testator, declarations, 179
statement of, 43, 46
Interest, declarations against, 170-176
matters of public and general, 180-184
Interest of witness no disqualification, 521, 527, 529, 531
questions to show, 604-607
contradicting answers of witness, 609-612
Interlocutory order not conclusive, 230, 232
INDEX. 737
[The numbers refer to pages.]
Interpretation of documents, 444-450, 0S7
Intoxication, previous occasions, 72
Introductory facts, 58-64
Involuntary confessions, 141-150
Irish statutes, 404
Irrelevant and immaterial questions, contradicting answers of wit-
ness, 612, 616, 618
Irrelevant testimony, 8
illustrations, 16
contradicting it, 17
Irresponsive answers, 589, 590, 593, 595
Jewish oath, 580
Joint contractors, admissions by, 118, 122, 127, 128
debtors, admissions by, 131
defendants, admissions by, 110, 116
maker of note, admissions by, 126
owners, admissions by, 130
Journals of Parliament, 404
Judge denned, 3
judgments conclusive in favor of, 244-245
powers of, as to bankers' books, 219
Judges privileged, 544-546, 696
Judge's notes of evidence, 229
Judgments, 220-255
denned, 220
against joint contractors, 242
against joint tort-feasors, 242
as evidence, 677
as part of a chain of title, 36, 37
by default conclusive, 230, 232
certified transcripts, 398, 401. 402
conclusive as between parties and privies, 224-234
conclusive in favor of judge, 244, 245
conclusive proof of their legal effect. 220-224
effect when given in evidence, 238-240
foreign, 251-255, 407
fraud, collusion, and want of jurisdiction, 246-2.") 1
how proved, 349
47
738 INDEX.
[The numbers refer to pages.]
Judgments — Continued
in admiralty cases, 234-238
in rem conclusive., 236
irrelevant between strangers, 234-238, 240-244
not pleaded as an estoppel, 238-240
of Federal courts., 251-255
of probate court, 222-224
of sister States, 251-255
Judicial notice, xxi, 314-331, 680
acts of Congress, 319
acts of Parliament, 314
almanac, 318, 326, 329
common law, 319, 327
course of nature, 316, 325
facts of which courts take, 314-330
general customs, 315, 328, 329
geographical facts, 316, 317, 320, 323-325
matters of public history, 322 #
matters of general knowledge, 326
meaning of words, 316, 325
other States and nations, 315
political divisions, 316, 317, 320, 323
procedure of courts, 315
proof of facts judicially noticed, 330, 331
public facts, 320, 321
qualities of matter, 321
seals, 316, 317, 328
statutes, 319, 327
terms of court, 322
treaties, 318
unwritten laws, 314
Jurisdiction, lack of, in procuring judgment, 246-251
of inferior courts, 247
Jurors, competency of, 548-550
Justice docket, 205
transcript, 205, 400
Knowledge, similar acts to show guilty, 76-86
1NDLX. 739
[The numbers refer to pages.]
Land, opinion as to value, 200, 275
Land office papers to prove title, 37
Land records, 204, 387, 402
Latent ambiguity, 452, 454, 456
declarations of testator, 178
Law books, 212, 214, 215, 216
Law reports, 203
Laws, judicial notice, 314, 319
of other States, opinion evidence, 267, 269, 277, 279
Lawyers, expert evidence, 272, 279, 280
see Attorneys
Laying foundation for proof of inconsistent statements, 615-619
Leading questions, 600-603
to refresh memory, 635
Leases, proof of, 348
L«gal conclusions, 264
Legal proceedings, regularity presumed, 504-510
Legislative investigations, privilege as to criminating question^ 565
journals, 200, 203
Legitimacy, declarations to prove, 189, 190
presumption of, 493
Letter press copies, secondary evidence, 346, 363, 372
of handwriting for comparison, 291
Letters as hearsay, 100
of administration, exemplifications, 392
of mother as part of the res gestae to show illegitimacy, 494
to contradict a witness, 620, 621
Libel and slander, proof of character to mitigate damages, 311-313
other offenses to show malice, 76-86
similar publications, 72
Licensee, estoppel of, 514, 517
Life tables, 213, 214, 216
Limitations, see Statute of Limitations
Limiting number of impeaching witnesses, 625
Liquidated damages, oral evidence to explain, 452
Lithographed copies, when primary evidence, 344, 346
Local expressions, oral evidence to interpret, 444
Lost instruments, 353, 365, 368, 374-377
preliminary proof of loss, 369, 370, 376
740 INDEX.
[The numbers refer to pages.]
Lost — Continued
affidavit of loss, 370
diligent search for, 368, 371, 375-377
wills, 177-179, 372
burden of proof, 487, 488
Lost will, declarations of testator as to contents, 177-179
Lucid interval, burden of proof, 477
Mailing letter, usual course of business, 89-93
Malice, declarations showing, 43, 46
Malicious prosecution, burden of proof, 481
character of plaintiff, 302, 303, 305, 313
to show want of probable cause, 304
judgment of acquittal conclusive, 221, 232
Malpractice, exhibition of injuries, 342
Manslaughter, dying declarations, 155-161
Maps, 209-217
certified copies, 402
explanatory, 62
thirty years old, 417, 418
to prove public and general rights, 181, 182, 184
Marriage, character for chastity, 304
communications during, 541-544
declarations as to, 184-191
opinion as to existence of, 295-298
record of, 298
Marriage certificate, 202, 205
Marriages, register of, 202, 205
Material alterations, 420, 422, 423
Material evidence defined, 7
Meaning of words in documents, 445, 449, 452, 455
judicial notice, 316, 325
Mechanical experts, 274
Medical books, 211, 214, 215
Medical experts, 212, 272, 277, 279, 281
Medical men, privileged communications, 559
Memoranda to refresh memory, 632-638
right of adverse party to see, 638
INDEX. 741
[The numbers refer to pages.]
Mental capacity, burden of proof, 4G2, 466, 467, 483, 484, 486
opinion as to, 263, 265, 270
Mental condition, how proved, 5
latitude in proving, 11
Mere error or irregularity, 251
Merger of oral contract in written, 437
Ministers, privileged communications, 559
Minutes of public meetings, 205
of a board, 207
Misprision of treason, number of witnesses, 572-574
Mistake, degree of proof required, 480
of fact or law, oral evidence of, 426, 428, 429, 435, 438, 441
Mitigation of damages, proof of reputation, 310-313
Models, use of, before the jury, 338
Moral evidence defined, 7
Mortgages, certified copies, 399
oral evidence to prove deeds to be, 435, 441
Mortuary tables, 214, 216
Motion to strike out, 588, 593, 595
Motive, 41-48
Murder, corroboration required, 573
dying declarations, 155-161
evidence of good character, 308
character of deceased, 309, 310
exhuming body to get evidence, 341
Narrative of past events, 51, 57, 58
Necessary witnesses, impeaching and contradicting, 614, 619, 628
Negative, when burden of proof is on, 464
Negative evidence, 11
Negligence, burden of proof, 462, 476, 485, 486
res ipsa loquitur, 476-479, 485
contributory, 483, 485, 486
prior negligence, 71, 72
repairs as evidence of, 44, 47, 48
Newspaper quotations hearsay, 97, 98
Newspapers, reading from, 214
New trial, substantial wrong, 649-652
Nominal parties to a suit, admissions by, 110-118
742 INDEX.
[The numbers refer to pages.]
Nonaccess, how proved, 493, 495, 496
Nonexpert opinion, 257, 259, 261, 265
as to sanity, 258, 263
as to testator's capacity, 259
as to custom, 260
as to speed of a train, 261
grounds of opinion must be given, 300
Nonproduction of evidence, 45, 48
Nonrepair of public highways, indictments for, 536
Nonsuit not conclusive, 227
Nonsupport, competency of husband or wife, 539
Notary, communications not privileged, 554
Notary's certificate, 206, 208
register, 207, 208
records, certified copies, 400
Notice to produce, 379-383, 683
document itself a notice, 380-383
original in court, 380, 381
time of, 382
document must be introduced in evidence, 638-640
party refusing to produce document barred from introducing
it, 640
Notoriety, hearsay admissible, 98
Nuisances to highways, rivers, bridges, 536
Number of witnesses, 572-574
Numerous items, leading questions, 601
Oath, confessions on, 150-152
form of, 579
by whom administered, 579
by others than Christians, 580
Oath or affirmation, 575
Objections to evidence, 588-595
to be specific, 588
time to be made, 590, 592
to evidence en masse, 592
for incompetency, 527
Objects shown to jury, 336-340
Obsolete expressions, oral evidence to interpret, 444
INDEX. 743
[The numbers refer to pages.]
Offenses against women, character of prosecutrix for chastity,
629-631
character of defendant, 631
Offer of evidence, 588, 595
for a special purpose, 9
Offers of compromise, 135-137
Office business of attorney, privileged communications, 555
Office copies, 391
secondary evidence, 361
Officer of bank, admissions by, 128
Officers, confessions to, 149
Official acts, regularity presumed, 504
communications, affairs of State, 546
reports and accounts, 203
returns, 204
Omnia rite acta, 693
Opinion as to sanity, 256-258, 262, 263
of a nonexpert, 257
as to mental capacity, 263, 265
on question of damages, 258, 260, 263, 266
as to value, 258, 259, 263, 265, 266. 275, 277, 281
as to physical condition, 259, 261, 262
form of questions, 261, 271, 273
as to identity and appearance, 261
as to speed of a train, 261
based on hearsay, 264
grounds of, 298-300
experiments, 299
Opinion evidence, 256-300
generally irrelevant, 256-267, 679
by experts on points of science or art, 267-282
facts bearing on expert opinion, 283, 284
as to handwriting, 285-295
as to existence of marriage, 295-298
grounds of, 298-300
weight of, 262, 267
where description is inadequate, 265
Opinions of experts, facts bearing upon. 283, 284
other cases of poisoning, 283
see Expert Opinion
744 INDEX.
[The numbers refer to pages.]
Opportunity for an occurrence, 58, 59
to do an act. 48
Oral evidence, 335-342
must be direct, 335-342, 681
manner of taking, 580
of contents of documents, 361
to alter terms of a written instrument, 425-459
Oral interpretation of documents, 687
Order of death in accidents, 497
Order of proof, 18, 586, 591, 594
Orders in council, 404
Ordinances, 203, 214
book of, 386
certified copies, 396, 397
Orphans' court decree, conclusiveness, 249
Other crimes, accidents, fires, etc., 65-76
Parent and child, burden of proof, 491, 492
Parish register, 205
Parliament, judicial notice of acts of, 314
of procedure and privileges of each House, 314
Parol evidence rule, 425-459, 685
Particeps criminis, confession of, 140
in adultery, 541
Particular acts of unchastity, 630, 631
facts, burden of proving, 481—486
falsehoods, reputation for truth, 624, 625, 628
Parties and privies, judgments conclusive, 224-234
admissions by, 106-118
Partners, admissions by, 118, 122, 126, 128, 130
Partnership, admissions to prove, 127
not proved by repute, 303
Partnership books, 165
Patent ambiguity, 452, 454, 456
Payment, burden of proving, 466, 467, 486
presumption of, after lapse of time, 475, 478, 507-510
oral evidence to prove, 431, 443
Pedigree, declarations as to, 184-191
blood relations, 185
INDEX. 74f>
[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
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